We often get asked to help employers deal with cases where an employee hasn’t come to work as expected. Perhaps they’ve been on leave and not returned when they said they would. Or something happens and they don’t show up one day, and one day leads to another, and then it’s been a week and no word.
But just when can you consider that an employee has abandoned their job? And what steps do you need to take to legally terminate their employment?
In this article, we take a close look at abandonment of employment, what it means, and the ways to handle employees who don’t show up to work for an extended period of time.
What is abandonment of employment?
The Fair Work Act 2009 does not define abandonment of employment, however the Fair Work Ombudsman defines abandonment as when an employee doesn’t:
- Come to work for an unreasonable length of time.
- Have a reasonable excuse.
- Speak to their employer about being away.
Case law has further clarified that abandonment of employment is a form of termination that the employee initiates, signalling through their own actions or inaction, an intention to resign. This means that the employer is not required to give notice.
Apart from allowing a ‘reasonable’ amount of time to pass, it is important to note that there is no statutory timeframe that an employer must wait before assuming that an employee has abandoned their employment (unless the period is stipulated in a workplace policy or the person’s employment contract).
When does abandonment of employment occur?
Abandonment of employment occurs when an employee doesn’t come to work, the employer doesn’t know why, and it is reasonable to conclude that they no longer want to keep their job.
The final factor is crucial, as it distinguishes abandonment of employment from things like being absent or taking unauthorised leave.
Legally, for abandonment of employment to be genuine, the employee must demonstrate an unwillingness or inability to perform their duties, and their behaviour needs to convince a reasonable person that they have abandoned their position.
As we mentioned, unless the person’s employment contract or other company policy clearly states the number of days you must wait without hearing from them before assuming they have abandoned their employment, you must allow a ‘reasonable’ period of time to pass.
In determining what a ‘reasonable’ timeframe is, we recommend considering factors such as:
- The circumstances leading up to the absence, e.g. was the person granted leave or subject to disciplinary action.
- Previous behaviour or patterns of absenteeism.
- The employee’s state of physical and/or mental health.
- Any recent contact with the person, family or relatives.
You must also demonstrate you have attempted to contact the employee a reasonable number of times to see if they have a reason for being absent and if they intend to return to work.
Reasons for employees abandoning employment
There are many reasons why a worker might abandon their job without informing their boss. Perhaps they have got a new role elsewhere and didn’t want to formally resign or work out their notice period. Or maybe there was an incident at work and the person walked off the job and did not return. Or they went on leave and never came back.
The key to determining if an employee has abandoned employment is whether through what the person has or hasn’t done, they clearly indicate that they do not wish to return to their job.
Steps to dismiss an employee for abandonment of employment
Proving that an employee has abandoned their employment can be hard. You need to be able clearly demonstrate that:
- the employee is absent or has failed to report for work; and
- they intended to end the employment relationship.
You should be careful not to jump to the conclusion that a worker has abandoned their employment, as there may be a perfectly reasonable explanation for them being absent and not getting in touch, e.g. they are in hospital after a serious accident.
Under the Fair Work Act, employees are entitled to apply for unfair dismissal, especially if they can demonstrate they expressed an intention to continue working.
To limit legal risk, employers should attempt to contact the employee to find out why they are absent and if they intend to return. Take detailed notes of your actions so you have evidence that you have taken reasonable steps to resolve the situation. You also need to advise the person of the possible implications of their continued unauthorised absence, e.g. termination.
Here’s the best-practice process you should follow if you believe an employee has abandoned their job.
1. Check the terms of the employment contract or company policies
To be on firm legal footing, you need to follow any provisions stipulated in the employee’s employment contract or your own workplace policies.
There may be a period of time that you must wait before reasonably concluding the person isn’t coming back, and a defined process for contacting (or attempting to contact) them.
There will also typically be established procedures for employees around how to request leave or notify the business when they are sick or injured.
2. Attempt to contact the employee
To terminate employment on abandonment grounds, it’s really important that you can demonstrate that you attempted to contact the employee (it’s your duty of care to figure out where the person is and whether they intend to return to work).
You should make multiple attempts via a range of communication channels, e.g. telephone, email, text message. You should also try to reach their emergency contact, and check if any other staff members have heard from the absent person.
Be sure to note down all your attempts at contact.
3. Write to the employee
After waiting for a reasonable period of time (we recommend 3 -5 working days) without contact from the employee despite your best efforts to reach them, you can start the abandonment of employment process by sending them a letter that explains:
- The period the employee has been absent without reasonable explanation.
- The reasonable attempts the business has made to contact them.
- If they do not respond within x number of days (this could be anywhere from 3 to 21 days, depending on the circumstances), you will conclude that they have abandoned their employment.
We recommended you send this letter by email and post a physical copy.
4. Confirm the end of employment
If the employee fails to respond to the abandonment letter within the indicated timeframe, and they have not contacted the business, you can send a termination letter that confirms employment has ended by way of abandonment.
You must pay the person their final pay. Depending on the conditions of their relevant award, or the terms of their employment contract, you may be able to withhold wages for any notice period not fulfilled by the employee.
If you don’t know where the employee is, you can pay the final amount to the Commonwealth and the person will be able to make a claim for payment to the Fair Work Ombudsman.
Abandonment of employment FAQs
How long does the employee’s absence need to be?
This is a grey area. A few modern awards used to contain clauses on abandonment that gave a range of limits for unreasonable absence from after 3 working days to within a period of 14 days from the employee’s last attendance at work or the date of their last authorised absence.
These provisions stopped applying in 2018, so we recommend following the steps we outlined in this post to reasonably prove the employee has abandoned their employment.
What isn’t abandonment of employment?
As a general rule, if you know where the person is, that is not considered abandonment of employment (unless you have warned them their job is at risk if they don’t return to work on a regular basis).
Similarly, a single instance of absence or a brief period of non-attendance does not necessarily constitute abandonment.
The key element in establishing abandonment is the intent of the employee to end the employment relationship.
Keep in mind that failing to notify you of their absence could be out of the employee’s control.
My employee is sick or injured and hasn’t shown up to work, is this still abandonment of employment?
No. We often hear people talking about abandonment in situations where an employee has been on sick leave for a few days, called with a loose explanation, but didn’t return when they were expected to.
This is not abandonment of employment as contact was made by the employee.
If you think the situation is unreasonable, you can still consider disciplinary action, or look at dismissal on the grounds of medical incapacity or medical retirement (note that you will have to follow fair and reasonable process and work with the person to fully get to the bottom of their medical situation and prospects before you can propose termination).
Should I have an abandonment clause in my employment contracts?
We recommend that all employment contracts include terms that define abandonment of employment and the process the employer will follow before concluding the employee has abandoned their employment (including timeframes).
The organisation should have clear policies and procedures on how to deal with employees who fail to attend work or communicate their reasons for absence, and all workers need to be aware of these requirements.
What if the employee makes contact during the termination process?
If your employee contacts you at any point during the termination process, you will need to start the process from the beginning.
The person may have a valid reason for being absent and not making contact, e.g. they’ve been in a serious accident or suffering from a serious illness.
If they do not provide a reason that explains their absence and failure to notify - e.g. they couldn’t be bothered showing up to work - you can consider disciplinary action. If you move to dismiss the employee for not providing a reasonable explanation, be sure to follow fair process as this is likely to be seen as a termination rather than a case of abandonment.
If the worker makes contact after the cutoff period specified in the final abandonment letter, and you accept their explanation is reasonable, you could consider reemploying them.
Do modern awards contain abandonment of employment clauses?
Modern awards don’t contain abandonment of employment provisions. A small number of modern awards did contain these clauses but they stopped applying in December 2018.
