HR Advice: A guide to “Abandonment of Employment”

6 December 2018

In the workplace, it’s not entirely uncommon for employees to simply stop showing up. This may occur after a period of leave, a performance meeting or a workplace dispute. If it was to happen, what are the rights of employers and employees? 

IS THERE A DEFINITION OF ‘ABANDONMENT OF EMPLOYMENT’? 
While there is no specific definition of ‘abandonment of employment’ in the Fair Work Act 2009, an employment contract, workplace policy or modern award may contain a provision relating to it. Note, there is no such provision in the Health Professionals and Support Services Award 2010. Generally, an employee is deemed to have abandoned their employment when they have ceased appearing for work and ceased to communicate their absence to their employer. 

IS THERE A SPECIFIC PERIOD OF TIME THAT MUST PASS BEFORE ABANDONMENT IS CONFIRMED? 
While a modern award may contain an indicative period of no time – generally 14 days – there is no hard and fast rule here. Similarly, a contract of employment or workplace policy may also have a specific period of time stipulated. What is crucially important however, is that the employer must take the additional step of ending the employment relationship when an employee abandons their employment. i.e., employment doesn’t automatically end when an employee stops showing up for work. 

ARE THERE ANY RISKS? 
In some circumstances, further investigation should be conducted before assuming an employee has abandoned their employment. For example, an employee may have been bullied and if this goes unmanaged/uninvestigated, the employer could be exposed to an unfair or unlawful dismissal claim. In any instance where you believe an employee may have abandoned their employment, contact the 

HAS ABANDONMENT OCCURRED? FOLLOW THIS PROCESS 
Step 1: Review leave records to ensure that the employee’s absence has not been authorised. 

Step 2: As soon as you suspect the employee has no intention of returning to work, attempt to contact them by all reasonable means (phone, email) to discuss the issue and confirm your suspicions. Employers are often reluctant to make direct contact with an employee who is absent without reason, but it is necessary to clarify and confirm what is going on with your employee. You may even consider attempting to contact the employee through other people such as work colleagues, family members or treating practitioners or even to visit the employee’s home. 

Step 3: If you are unable to contact them by telephone/email or they refuse to speak with you, send a letter by either registered mail or courier to their last known address stating that you believe they have abandoned their employment as they have failed to show up for work at the usual time and consequently their employment may be terminated. Your letter must request the employee to make contact with you to provide an acceptable reason for their absence or return to normal duty within a seven-day time frame. Failure of the employer to explore all ways to contact the employee may indicate that the employment agreement remains ongoing and entitlements continue to accrue. 

Step 4: Ensure that the employee has not contacted someone else in the workplace and provided a reason for their absence. Therefore, you may need to ask other staff if they know the whereabouts of the employee. 

Step 5: Consider any underlying issues behind the employee’s unexpected absence and investigate where necessary. 

Step 6: If no response or other evidence has been received from the employee after seven days then termination is assumed, and a termination letter can be sent to the employee including any outstanding payments. 

Step 7: Should the letter/s be returned unclaimed, keep it in the individuals employment file as proof of your attempt to contact them should they attempt reinstatement at some later date. 

IN SUMMARY 
A potential abandonment of employment situation is rarely straight forward. It is strongly recommended to contact the ADA HR Advisory before taking any action in these circumstances. 

For more information or assistance, please contact the friendly team at the ADA HR Advisory Service on 1300 232 462 (8.30 am to 5.30 pm AEST, Monday to Friday) or email [email protected] You can also access information from the ADA online Human Resources Hub