Abandonment of employment — know the rules
Abandonment of employment is triggered when an employee leaves their position without any intention of returning to work.
But in which situations does this apply? We explain.
An employee is a no-show at work. Is this abandonment?
"Abandonment of employment" describes the situation where an employee ceases to attend the workplace without a proper excuse or explanation.
As a result, it shows an unwillingness or inability to substantially perform their obligations under the employment contract.
In most cases, the employee is absent from work for a prolonged period without explanation and without your consent or knowledge.
“When considering whether an employee has abandoned their employment, you should take all reasonable steps to contact the employee and determine their reasons for being absent and whether they intend to return to work,” says Employee Relations Advice Centre Advisor Paris Lynch.
"This is intended to rule out cases where, for example, an employee has been unable to contact you but they have a valid excuse for being absent.”
How do I establish the abandonment process?
When you notice an employee has not shown for work, your first objective is to establish that the absence was not authorised by anyone in the business.
“If the answer is no, then contact the employee and determine the reason for their absence,” says Lynch.
Each attempt to contact the employee should be documented - and you should give the employee enough time to receive and respond to the attempt before any additional attempts are made.
How do border closures impact abandonment cases?
The COVID-19 pandemic has resulted in changing travel restrictions and border closures — both internationally and within Australia.
This has created challenges for many businesses, where employees have been unable to travel or return to the workplace due to border closures.
A key question that arises when an employee isn’t able to return to work due to travel restrictions is: Does this constitute abandonment of employment?
Abandonment of employment is a scenario when an employee leaves their employment with no explanation and no intention of returning.
“It is important to note that if you’re aware of the employee’s whereabouts and they're in contact with you, then it generally won’t constitute abandonment of employment,” says Lynch.
Each scenario should be treated on a case-by-case basis, however in the first instance you should consider:
- Making and maintaining regular contact with the employee;
- Explore whether they can temporarily work remotely or work from home and;
- Discuss the option of taking some accrued annual leave, long service leave or time off in lieu during this period.
An employee's leave has ended but they haven't returned. What do I do?
If an employee hasn’t returned to work after a period of leave or absence it doesn’t mean they don’t intend to return.
Firstly, consider whether the employee’s absence has been authorised by a manager or any other person within the business?
“If the answer is no, then contact the employee as soon as possible to obtain an explanation for the absence and determine if they plan to return to work,” says Lynch.
“If no response is received within a specified period of time, you should contact the employee’s nominated next of kin or emergency contact.”
It’s important to note that if you're aware of the employee’s whereabouts, but the employee is not contactable, then it may not constitute abandonment of employment.
If all attempts to contact the employee are unsuccessful, you should issue a formal letter, sent through registered mail. The employee should be given adequate time to respond to the letter. If no response is made, a second letter should be sent.
If at any point in this process the employee establishes contact with you, it may no longer be considered abandonment of employment and they should be given the opportunity to respond to their absence. It may then move into a disciplinary matter.
If, however, the employee repeatedly fails to make contact after numerous attempts to contact them, you may accept the employee’s repudiation - and abandonment may occur.