Abandonment of employment is when an employee is absent without reasonable excuse from their workplace for an unreasonable time and has not given any explanation to their employer.
An employee must clearly state that they intend to end their employment otherwise it may very well consitute reasonable grounds for abandonment.
It is important to note that employers also have obligations when determining if the termination of an employee on adgrounds of abandonment alligns with the definition.
We explain what abandonment of employment is and share some case examples.
What is the definition of abandonment of work?
“Abandonment of employment” is a term that describes a situation in which an employee stops attending his or her job without any explanation or justification. It indicates a failure or unwillingness to fulfill his or her obligations under the employment contract. This could be called a “renunciation” of the employment contract.
An employee could abandon employment if they leave a job during a shift, and then not return to work the next day.
Test for abandonment of employment: Whether one party’s conduct is such that it conveys to a reasonable person in the other party, either the whole contract or a fundamental obligation under the contract.
The employer can terminate an employment contract by renunciating the employee’s agreement to renounce. The employer’s action in such a situation terminates the employment contract. However, the employee’s renunciation is what ends the employment relationship.
Sharpe v MCG Group Pty Ltd.
An employee had informed her employer she was unable to work due to health reasons. She was then fired. The Commission ruled that the employee was terminated on the employer’s initiative. The argument that the employee had left her job by failing to show up for work as instructed was rejected. Instead, the employer was held to have terminated the employment.
Le Plastrier (Northern Belle Pty Ltd):
The applicant disagreed with her employer about a certificate that was allegedly not compliant for one of the workers. The applicant was concerned about her legal obligations to the licensing authority. Her employer ruled that the certificate was acceptable, and she was dismissed. The employer, Le Plastrier refused to allow the applicant to work the same shift as the worker and told her that her position was no longer available because the day shift was over. Although the employer offered the applicant work, it never confirmed the offer. The employer deemed this to be a termination of employment.
Thompson v Zadlea Pty Ltd T/A Atlas Steel
This case was an unfair dismissal claim filed in the Fair Work Commission by a Canadian national who was employed as a metal fabricator/welder. The original visa was for a temporary holiday visa. It expired in April 2018. The applicant then signed an employment contract with Atlas Steel, whereby it was his nominee for a Temporary Skills Shortage Visa.
The applicant was involved in an altercation on 21 June 2018 with another employee. After a dispute with the same employee, the applicant quit the job and returned to his home. After encountering the same employee, the applicant went to his doctor. He issued him a certificate regarding his capacity. This indicated that he was required to be absent from work until 5/7/2018. The respondent determined that the applicant had quit his job due to his inability to work for more than three consecutive days. He then decided to withdraw the visa nomination.
The Commission wasn’t satisfied that applicant had quit his job because he stopped attending his work place without giving any explanation or excuse. The Commission found that the respondent had effectively taken action to terminate applicant’s employment by withdrawing its visa nominee. Its actions were unreasonable and harsh. After the applicant left his workplace on 22 June 2018, the respondent did not attempt to contact him. The Commission ruled that the applicant had been unfairly dismissed and awarded $7,022.40 in compensation. Less tax was required by law.
Are you considering a resignation or abandonment of employment?
Employers are generally capable of accepting a clear, unambiguous resignation as valid resignation. Special circumstances can arise if a resignation is made in the heat of a situation or under extreme pressure. An employer may have to give a reasonable amount of time if there are special circumstances. If the employer is notified that they have not intended to resign, they may be required to confirm that they intend to resign.
Claypole v Australian Native Landscapes
In the case of Claypol v Australian Native Landscapes the employee was fired after a heated argument with his employer. In this instance the employer chased the employee in a car, leaving him on the roadside without a vehicle to take home. The employer claimed that the employee had left his job and then later claimed that he had violated company policy. The employer found no reason for dismissal. The applicant was not properly notified and was not given the opportunity to respond.
Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group
A former employee of Fortezza Pth Ltd testified that he suffered from anxiety and depression. This was exacerbated by the stress of work. An employee was dismissed while on personal leave. He was covered by a health certificate. The employer refused to accept the medical certificate and claimed that the employee had left his job. 26 days later, the employee filed an Unfair Dismissal Application.
Employer Obligations in Employment Abandonment
Employers who believe an employee has left their job must contact them to find out the reasons. The most appropriate contact methods include email, phone, and mobile phone. Employers should keep a record of any attempts to contact employees. This includes messages left or conversations, and these notes should be kept on the employee’s personnel file.
If attempts to contact the employee fail, the employer should send a letter via registered mail or email with automatic sender notification activated to the last known address of the employee. The employer should contact the employee to get a reason. If the absence is due a medical condition the employer should request appropriate evidence. If the reason is not due a medical condition the employer should send a letter to the last known postal address. We recently wrote an article on ‘Can I get fired for not having a medical certificate?‘ worth reading for more information.
If the employer fails to get back to the employee as described above, then the last step is to send a second letter or email. The employer should send a final letter or email detailing all attempts to contact the employee. It should also include specific details like dates, details of messages left, emails and SMSs as well as specific details about the contact methods used.
Notify the employee that if no contact is made by the employer by a specified date (or if they fail to provide a valid reason), the employer will consider the employee to be terminated from their employment. The employer may declare that the employee has quit their job if they do not respond to the final correspondence. This will be a repudiation of the employment agreement and will terminate the employee’s employment contract.
Abandonment of Employment or Unfair Dismissal Applications
Our team of Australian Workplace Discrimination Representatives are experts in unfair dismissal Victoria can help you determine if your employer claims you have been fired but it is not your fault.
Even if you believe that you have left your job, the employer must follow the steps suggested or any reasonable steps they would take to determine if an employee has quit.
Contact our team today.
