Being absent from work without authorisation or approval, or without supplying a reason, is termed as ‘abandonment of employment’. It is important to be clear about your rights and obligations as an employer in such situations. Here’s everything you need to know to avoid putting your business at risk
What is abandonment of employment?
In situations where an employee ‘walks off the job’ or fails to return to work after a period of authorised leave, or simply disappears they are often accused of “abandoning their employment”.
When does an employee abandon their employment?
Abandonment usually arises in circumstances where an employee is absent from work without a reasonable excuse for an unreasonable period of time without having communicated to you any reason for the absence.
For an employee to have abandoned their employment, it must be clear that the employee has clearly demonstrated an intention to no longer be bound by the terms of their contract of employment.
The most obvious way in which this can occur is by a walk-out, so long as it is made clear, for example, by the employee’s parting words, that they are leaving permanently (although you should act cautiously in such event and try to confirm the employee’s intentions).
This is distinct from resigning in accordance with the terms of the contract of employment, which would usually include the giving of notice. A resignation brings the employment contract to an end but does not involve a breach of the contract of employment. Abandonment of employment represents a serious breach of the employment contract.
In dealing with such cases, you should make immediate and repeated genuine attempts to contact the employee and make it clear that, if they do not explain their absence or return to work, they will be considered to have abandoned their employment.
A good process is as follows:
• Attempt to contact the employee via telephone, mobile phone, email, work colleagues, etc.
• If there is no response by the employee, send a letter by registered mail to the employee’s home address asking them to contact the company as soon as possible.
A record of each contact attempt should be made noting the full details of the attempt.
Abandonment of employment
In the situation where all attempts to contact the employee fail, the point at which they will be considered to have abandoned their employment will depend on how long the absence extends and the context in which it occurred. Where there is no evidence to explain a long-term employee’s disappearance, a significant period of time would need to elapse before an employer could reasonably conclude that the employee had demonstrated an intention to no longer be bound by the terms of the contract.
On the other hand, where a short-term employee (of only a few months) vocally indicates their dissatisfaction with their employer, the conclusion could be reached much sooner.
A welfare check occurs when the police respond to a requested area to check on the safety or well-being of a person.
If you are reasonably certain that the employee’s behaviour is out of character and have reason to believe that something is truly amiss, you can contact the local police and request they conduct a welfare check.
Some modern awards contain a provision regarding abandonment of employment. This usually regards an absence of more than three consecutive working days without the employer’s consent and no notification to the employer. A further 14-day period of absence without satisfying the employer there is a reasonable cause would result in the employee being deemed to have abandoned his/her employment.
For example, clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 refers to abandonment of employment, although it is important for readers to be aware that the Road Transport and Distribution Award 2010, the Road Transport (Long Distance Operations) Award 2010, and the Clerks—Private Sector Award 2010, do not contain any abandonment of employment terms.
NatRoad’s advisors have substantial experience in advising on abandonment of employment and termination of employment matters.