Managing Abandonment of Employment: A Guide for Employers

Understanding Abandonment of Employment

Employers often are faced with the complex – and frustrating – task of managing employees who fail to show up to work, without notice or excuse.

Often the term ‘abandonment’ is thrown around, but what does it really mean?

Abandonment of employment occurs when an employee fails to attend work for an extended period without providing a reasonable excuse or explanation and, in doing so, demonstrates an unwillingness or inability to fulfil their employment obligations.

An employee may be considered to have abandoned their employment when:

1. They have been absent from work for an unreasonable period of time without explanation.
2. They have not provided a reasonable excuse for their absence.
3. They have failed to respond to attempts by the employer to make contact.

If all three conditions are met – in particular (3) above – an employer may reasonably conclude that the employee has abandoned their role. However, an employee’s absence without communication does not automatically equate to resignation, and misclassifying such scenario can expose employers to post termination claims, including unfair dismissal.

Legal Framework

Abandonment of Employment and the Fair Work Act

The Fair Work Act 2009 (Cth) (FW Act) does not contain a specific “abandonment of employment” provision. Further, provisions contained within Modern Awards regarding abandonment were removed in 2018, after a finding that they were inconsistent with the FW Act. Therefore, abandonment generally falls within the doctrine of renunciation of contract.

The test applied is whether a reasonable person, in the position of the employer, would conclude that the employee’s conduct indicated a renunciation of the employment contract.

In such circumstances, it could be concluded that the cessation of employment was at the initiative of the employee – not the employer. Where the cessation is at the initiative of the employee, they are barred from making certain post termination claims.

However, recent cases generally demonstrate that this position is difficult to prove.

Recent Case Law: Employer Mistakes in Assumptions of Abandonment

Recent cases before the Fair Work Commission (FWC) highlight the risks associated with wrongly assuming abandonment and reinforce the need for employers to follow a structured process before proceeding on these grounds.

Case Study: Nada Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006

Facts

Ms Hinic sustained a workplace injury. Following a period of leave, she was medically cleared to return to work in a limited capacity. However, she failed to attend work and a series of scheduled return-to-work meetings. The employer, believing that her repeated non-attendance signified a lack of intention to return, issued a letter declaring that she had abandoned her employment.

Ms Hinic lodged an unfair dismissal claim, arguing that she had not abandoned her role but had instead been unable to attend the meetings due to ongoing medical concerns. She further claimed that the employer had failed to provide a structured return-to-work plan and had not clearly communicated the expectations around her return.

Findings

The FWC ruled in favour of Ms Hinic, finding that a reasonable person would not have concluded that she had abandoned her employment. The FWC emphasised that the employer had made incorrect assumptions about her non-attendance without properly clarifying her willingness to return. The ruling reinforced that an employer cannot assume abandonment based on missed appointments alone, especially when an employee has continued to express a desire to work.

The FWC determined that the employer had initiated the termination, rather than voluntary abandonment.

A similar finding by the FWC was made in the case of Brian Jamison v TECHNIQUES Management Pty Ltd [2023] FWC 3408, where the FWC found the cessation of employment at the initiative of the employer, which had ignored the employee’s attempts to return to work.

Case study: Elizabeth Sowden v Design True Pty Ltd [2024] FWC 2063

Facts

Ms Sowden was employed by Design True since February 2022. In June 2023, she commenced a period of leave due to a workplace injury. In February 2024, while still on leave, Ms Snowden accepted employment with a different employer (Geyer). On 2 April 2024, she resigned from her employment with Geyer, with effect on 9 April 2024. On 4 April 2024, Design True wrote to Ms Sowden, outlining that it considered Ms Sowden had repudiated her employment contract, and Design True had accepted such repudiation – therefore, the employment had ceased.

Ms Sowden filed a general protections claim involving dismissal, alleging she was terminated due to a prohibited reason. Design True alleged that it did not terminate Ms Sowden, but rather it was her own initiative as a result of her repudiation of the employment contract.

Findings

The FWC had to consider whether Ms Sowden had repudiated her employment contract with Design True by accepting employment with Geyer. It also considered whether Ms Sowden had abandoned her employment with Design True.

Ultimately, it was held that she had not abandoned her employment, nor renounced her contract – and Design True had ‘dismissed’ Ms Sowden when it wrote to her purporting to accept her repudiation.

Employer Considerations and Best Practices

Determining abandonment of employment requires a careful, structured approach. Employers must thoroughly investigate an employee’s absence and take reasonable steps to contact them before making any termination decision.

However, employers must exercise caution before concluding abandonment. Missed return-to-work meetings, lack of updated medical certificates, or silence for a short period, do not necessarily indicate abandonment.

Ultimately, proactive communication and adherence to procedural fairness are crucial. Employers who fail to engage in a fair and transparent process may find themselves facing post termination claims..

For expert advice on managing abandonment of employment and related workplace issues, contact HR Legal today.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.