Missing in action: When is an employee considered to have abandoned their employment?

When an employee doesn’t show up to work and is unable to be contacted, termination seems like the next obvious step; however, acting hastily can result in the termination being overturned. Recently, the Fair Work Commission (Commission) held that an employee is entitled to pursue his general protections claim after his employer wrongly determined that he had abandoned his employment.

The facts

The employee, a cook, had been deemed unfit for work after suffering from a psychological injury since late 2022 and was receiving weekly workers’ compensation payments.

By May 2023, the employee was still certified as suffering from severe anxiety, anger, and insomnia relating to work and his psychologist advised that he did not believe his client could return to the restaurant.

In September 2023, the employer sent the cook an email explaining that they had allowed him time to recover and potentially resume work, but that his 12-month absence showed he was unwilling to return to his job and that his employment was “now considered terminated”.

The employee filed a general protections application involving dismissal. In response, the employer raised a jurisdictional objection that the Commission did not have the authority to hear the matter as the employee had not been dismissed, but rather had abandoned his employment.

Fair Work Commissioner Stephen Crawford rejected the employer’s jurisdictional objection finding the termination occurred on the employer’s initiative. Commissioner Crawford said:

“There have been many arguments over the years regarding the doctrine of frustration of the employment contract, where employers would argue that when it becomes clear there is no prospect of the employee returning to work, the employment ends due to frustration of the contract and hence not at the initiative of the employer. However, the NSW Industrial Relations Commission’s full bench decision in Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17 showed this doctrine has “minimal relevance” where instruments like the National Employment Standards and industry awards regulate conditions around termination.”

Commissioner Crawford determined from the employer’s email that they made the decision to dismiss the cook after concluding there was no prospect of him returning to work, and that his supposed unwillingness to return to work “misstates the position” when the reason for not attending was “crystal clear”. The matter has been listed for conference.

Key takeaways for employers

This case highlights the importance of conducting a proper assessment as to whether an abandonment of employment process is appropriate in the given circumstances.

It is important that employers don’t make assumptions too early that the employee has abandoned their employment. An employer should ensure that they do not take steps that may give rise to an unfair dismissal or general protections claim. These include undertaking an abandonment of employment process when:

• The employer knows where the employee may be;
• The employee is on extended medical leave;
• The employee is taking an appropriate period of approved leave (annual, unpaid, personal or parental leave); or
• The employee is taking an agreed leave of absence.

What should I do if I suspect my employee has abandonment their employment?

In the first instance, where an employee is suspected to have abandoned their employment, the employer must make reasonable attempts to contact the employee.

The Commission has highlighted the significance of this initial step on a number of occasions. For instance, in the case of Orry Thompson v Zadlea Pty Ltd [2019] FWC 1687, the Commission held, ‘the employer needed to have attempted to contact [the employee] before it could legitimately conclude he had abandoned his employment’.

In making ‘reasonable attempts’ to reach the employee, employers should adopt a multifaceted approach, encompassing various communication methods such as telephone, email, text message, and even reaching out to next of kin, in their concerted effort to establish contact.

How long should I wait for the employee to respond?

Apart from allowing a ‘reasonable’ period of time to pass, it is important to note that there is no statutory timeframe that an employer must wait before it can assume that an employee has abandoned their employment.

However, in determining a ‘reasonable’ period of time, it would be recommended to consider the following factors:

• the employee’s circumstances leading up to the unexplained absence (such as approved leave or extended absence for illness or injury);
• previous absenteeism patterns and behaviour;
• the employee’s physical and/or mental health; and
• any recent contact with the employee or their next of kin.

The employee won’t respond to any attempts to contact them, what are the next steps?

Abandonment of Employment Letter

After all available communication channels have been exhausted and a reasonable period of time has passed, the employer can consider commencing the abandonment of employment process.

To do this, it is recommended to prepare a letter outlining that the employee has been absent without explanation, the business has made reasonable attempts to contact them, and should the employee not respond within 7 days, it will be considered they have abandoned their employment.

As a matter of best practice, this letter should be sent via email and registered post.

Termination Letter

If the employee fails to respond to the abandonment of employment letter within the prescribed timeframe, and they have not contacted the business, a termination letter can be issued confirming that employment has ended by way of abandonment of employment. It is best practice to set the date of termination as effective of the date the letter was sent.

Want To Know More?

The National Retail Association have prepared an Abandonment of Employment Factsheet, available for members via the Member Portal. Login and download it here now.

If you want to learn more about when an employee’s absence can be considered abandonment of employment, or for assistance preparing an abandonment of employment letter, please contact NRA Legal on 1800 572 679.

Won Woo Shin v The Trustee For G Capital N0. 1 Trust [2024] FWC 303 (5 February 2024)