Abandonment of Employment

Definition:

Abandonment of employment usually refers to a situation where an employee fails to attend work for no reason know to the Employer, and it is reasonable to conclude that the Employee no longer wishes to work for the Company.

An Employee may be taken to have abandoned their employment if he or she simply walks off the job or fails to return to work after a period of authorised leave or if an Employee is absent for a continuous period of more than three days without any notification or communication. In such circumstances the Employer will be reasonably entitled to conclude that the employee no longer intents to be bound by their employment agreement (providing appropriate steps are taken). However every circumstance is different and may be subject to change depending on the mitigating circumstances, it is advised to contact us before making any final decisions.

Of the 123 Modern Awards there are only currently 5 that contain a clause regarding abandonment of employment. The problem for Employers that are not covered by these 5 Awards is that is leaves Employers in a grey area with little clarity on direction and steps that can be taken.

However if an Employee agreement or contract contained a clause relating to abandonment of employment that is consistent with regulations set in the 5 Awards that contain the abandonments of employment clause, it would provide clarity in such circumstances for Employers.

As such it is advised to have an abandonment of employment clause within your Employee’s contracts or abandonment of employment policy outlined in your company handbook.

If you want to make sure that you have clarity in an abandonment of employment situation, give us a call today.

Our Helpful Guideline Steps Before Declaring Abandonment of Employment

• Step 1 ‚ ¨ Contact The Employee

Write to the Employee and attempt direct or telephone contact with them.

Ask for an explanation and inform the employee that you will assume they have abandoned their employment if they do not respond within a specific time period.

 

Example Abandonment of Employment Notification Letter

<Date>   Dear <Employee Name>   Re: Unexplained Absence   You have now been absent for over a period of three (3) working days without <Companies Name> consent or notification. We are writing to ask that you contact us immediately to advise us on the reason for your absence. If we are not provided with a response within 10 days, we will deem that you have abandoned your employment with <Companies Name> and will make the appropriate termination steps.   Yours Sincerely, <Name> <Position> <Company Name>

 

• Step 2 ‚ ¨ Contact the Employees next of kin

If you cannot get onto the Employee directly, try to contact the Employees next to kin or relative which should be listed within their personal files.

IMPORTANT – You MUST take all possible steps to contact the Employee or their next of kin before making a conclusion of abandonment of employment as the employee may be in a situation where they cannot contact you themselves due to circumstance beyond their contract for example if they were in hospital unconscious.

• Step 3 ‚ ¨ Determine what action to take based on the Employee’s response

If the Employee responds to your calls or enquires but does not however provide a reasonable explanation for their absence, it will then turn into a disciplinary matter.

IMPORTANT – If the Employee fails to respond and continues to be absent for 14 days, you may be entitled to assume the employee has abandoned their employment. This would also be dependent upon the terms of any relevant industrial policy, Award or Enterprise Agreement regarding to the circumstances of the absence.

 

A Court or Tribunal in looking at cases of abandonment of employment is more likely to look at the intention of the Employee rather than the period of absence.

 

DISCLAIMER: Whilst every care has been taken in preparing this publication, Fresh HR Insights, including its Owners, servants and agents, will not accept any responsibility or liability to any person or corporation seeking to rely on any information, advice, or opinion provided in this publication or otherwise given in any matter by the Owners, servants or agents of Fresh HR Insights for any loss or damage of whatever nature suffered by any such person or corporation. No part of this publication may be reproduced in any manner without the written permission of Fresh HR Insights. This information is not a substitute for professional advice from a Employment Lawyer or Human Resource Consultant.