When an employee has failed to present for work without adequate explanation or prior authorisation, an employer may assume that they have abandoned their employment. However, it would be unwise to believe this without consideration of the circumstances surrounding their absence and steps made to contact the employee.
Abandonment occurs when the employee has been absent from work without any communication as to the reason for their absences, and by way of conduct, has repudiated their employment. When considering whether an employee has abandoned their employment, the employer should take all reasonable steps to contact the employee and determine the employee’s reason for their absences and intentions regarding their return to employment. This is intended to rule out cases where, for example, an employee is in a situation where they are unable to contact the employer but has a valid excuse as to why they are absent. For example, if they are in hospital and unable to return or answer attempts to contact them, and have no one to contact their employer on their behalf.
The case of Bienias v Iplex Pipelines Australia Pty Ltd (the Iplex decision) illustrates the risks of jumping the gun in assuming the employee had abandoned their employment. Bienias, following a workplace investigation, took a period of unauthorised absence from their employment due to mental health. At the time, the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) contained a provision which determined abandonment of employment as an absence that lasts at least 14 days where the employee is unable to “established to the satisfaction of their employer that they were absent for reasonable cause”.
While the employer tried contacting Bienias by phone, letter, and even organised a police welfare check, they could not establish contact and determined after the 14 day time frame that Bienias had abandoned their employment, in accordance with the Award), and Iplex Pipelines terminated their employment. The Full Bench of the Fair Work Commission took the view that Iplex was the party that moved to terminate the employment, not Bienias, and as such Bienias was unfairly dismissed from his employment.
While the provisions for abandonment of employment were removed from modern awards, following the Iplex decision, the warning of rushing the abandonment process and action of terminating the employee, rather than accepting their repudiation is still relevant.
When an employer notices an employee has not shown for work (i.e on an unauthorised absence), the first objective of the employer should be to establish contact with the employee and determine the reason for their absence. This may be done through many forms available to the employer and may depend on what is the normal methods of contact including phone, email, contact to the next of kin, SMS, registered post to the employees’ last known address, and possibly police welfare checks.
An employer should also consider circumstances surrounding the absence such as if the employee was in an area with poor ability to contact the employer immediately before the absence. Each attempt by the employer to contact the employee should be documented and the employer should give the employee enough time to receive and respond to the attempt before any additional attempts.
If during the course of trying to contact the employee, the employee has established contact with the employer, the issue may change into a disciplinary matter when no valid reason is given for the absence.
Furthermore, employers should check for additional conditions that may need to be met in relevant awards, enterprise agreements, or other industrial instruments.
Managing employees on an unauthorized absence may be hard. It can be even harder determining when abandonment occurs. In either case contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email email@example.com.
Written By Andrew Emerson – Employee Relations Adviser
“REEFWA are an exceptional corporate body that provides real time advice, advocacy and detailed information on all industrial relations matters pertaining to our industry. They operate with professionalism and personal service. Beneficially for you, they have a broad range of highly experienced personnel that work in the industry and offer years of knowledge.”
This website does not give legal advice. The content found on this website is intended to give you general information in summary form on legal topics, not legal advice. The law differs in each jurisdiction and even similar laws may be interpreted differently in different courts or places and will often change depending on your individual circumstances. Laws are often complex and the general information that has been provided on this website will not fit every circumstance. You should consult a legal professional to get formal advice regarding your situation or particular matters. Nothing on this website constitutes legal advice and it should not be relied upon as such. You use this site and any content found on this site at your own risk. To the maximum extent permitted by law, REEFWA, the Chamber of Commerce and Industry Western Australia Limited and Business Law WA Pty Ltd are not responsible for any direct or indirect loss, injury, claim, damage or liability (including, without limitation, any liability arising from fault, negligence or negligent misstatement) related to your use of, or reliance on, the site or its contents, whether from errors or omissions in the content of our site or any other linked sites, from the site being down or from any other use of the site.