If an employee ‘abandons’ their work, is it grounds for dismissal?

employee abandons work

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence — never to be heard from again.

How should the employer respond? Particularly where it appears the employee has abandoned their employment and has brought the employment relationship to an end.

In a recent decision, the Fair Work Commission (FWC) considered an employee’s unfair dismissal application in circumstances where the employer determined the employee abandoned his employment while he claimed he was on certified stress leave.

The employee was employed as a welder and his employment was sponsored by the employer under a Temporary Skills Shortage Visa. On June 21, 2018, the employee was involved in an altercation with a colleague. The employee reported the incident to his manager and left the worksite on the basis that he did not feel safe to continue working with that colleague. He also reported the incident to the local police.

The employee claimed that he was suffering from stress and anxiety as a result of the incident and consulted his general practitioner the next day. He was advised to take two weeks off and to return to work on July 9, 2018. The employee claimed he submitted this medical certificate to his employer and also made a workers’ compensation claim relating to the incident.

While the employee was away from work, he received notification from the Department of Home Affairs that his visa application could not be approved because his employer had withdrawn its nomination. The employee then texted the employer to ask what had happened, to which he received no response.

The employee lodged an unfair dismissal application claiming the employer’s withdrawal of the sponsorship support was, in effect, termination of his employment because he could not work without a visa.

In the proceedings, the employer denied it had dismissed the employee from his employment, arguing it had not heard from the employee after the incident with his colleague. It concluded as the employee was absent from work for three days without approval and without any notification of his absence, he had abandoned his employment. As a result, the employer decided to withdraw its visa nomination of the employee.

The employer claimed it did not receive the employee’s medical certificate until after he had made contact with them about the denial of his visa.

The FWC had to first consider whether the employee was dismissed by the employer, or if he had abandoned his employment, in which case there would be no dismissal.

The FWC adopted the approach set out by the Full Bench in its review of abandonment of employment clauses in modern awards as part of the four-yearly review of modern awards. The FWC considered the evidence provided by the employer in which it admitted that after the employee did not make contact for three days, it concluded the employee had abandoned his employment and then moved to withdraw its nomination of the employee for the visa. The employer also admitted it did not make any attempt to contact the employee in the three-day period.

The FWC was not satisfied the employer could have concluded the employee had abandoned his employment without contacting the employee or attempting to contact the employee. It found if the employer had contacted the employee, it would have discovered the employee was suffering from stress and anxiety as a result of the workplace incident and was not fit for work. The FWC considered the employee’s conduct was consistent with someone suffering from stress rather than an abandonment of employment.

The FWC also found the employer could not have concluded after only three days the employee had abandoned his employment. It stated that there were “obvious steps” expected to be taken by the employer, such as contacting the employee about his absence and investigating the workplace incident.

Having found the employee did not abandon his employment, the FWC held that there was not a valid reason for dismissal and the dismissal of the employee was harsh, unjust and unreasonable. It ordered the employer to pay $7,022.40 in compensation to the employee.

Lessons for employers

In December 2018, the Full Bench removed abandonment of employment clauses from those modern awards which included these clauses.

While circumstances will vary, both the Full Bench and the FWC have made it clear where an employer suspects that an employee has abandoned their employment, steps must be taken by the employer before determining there has been an abandonment of employment, including at a minimum, contacting or attempting to contact the employee about why they are not at work.

It is also important for employers to remember there is no set timeframe (for example, three days) where an employee’s absence will be taken to be an abandonment of employment.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website.

NOW READ: Fruit delivery business ordered to backpay driver more than $80,000 after not providing meal breaks

NOW READ: What is a “valid reason” to fire an employee? Lessons from unfair dismissal claims

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Michael Ratner
Michael Ratner
1 year ago

Speaking as an employer – here again is an unfair decision foistered on the employer with no responsibility attributed to the employee to prove an attempt at dialogue.

MP
MP
1 year ago

I had let go a staff member on abandonment. Went through the process of daily calls, registered mail, emails etc. After it was all said and done, a month later he turned up to work saying he got all correspondence and thought he could still come back to work. Couldnt believe it. This was after 2 months.
Make sure you get good legal advice though as we did to make sure it didnt hit unfair or unlawful dismissal.

Tim42
Tim42
1 year ago

I am employer, being in business stresses me. My employee’s at time make life very hard for me. Stress over the 20+ years has been very constant and sometime severe.

You are responsible for so much but have no rights.

The truth is the system does not give a stuff about my stress and health, nor my family.

It would be happy to suck the life out of us. Truly it see’s us as a resource to use and abuse.

The FWC does not treat employers like human beings, its had incredible bias. I have not ended up there, but know those who have. Even an ex-commissioner upon resigning expressed that employers need to be treated in better way in the last few years.

I got close once and they let a person with no rights to claim, go on forever and waste my time, money and stress me. That same person wasted more of my time and tried to damage us through complaints to 2 other government agencies. I wish the FWC would keep a list of “bad” employees .

The playing field is not level and their is no reward juts constant vigilance against so many takers and abusers, who will bring this country down within a short time to being below first world. They are sucking too much marrow from the payers, who allow the place to exist, as it does now.

Ed Shyed
Ed Shyed
1 year ago

What the hell, they dont turn up and we are expected to chase after them? They work for me, i’m not their personal assistant, if they can not carry out the basics of notifying me and just not show up, WHY should keep their position for them.

So he doesnt call in, he immediately seeks medical – yet does not inform his employer, however he is more than happy to contact worker comp for $$$$ and the non-reputable unFair Work Comm come out with this tripe.

This is the reason I will NEVER hire a 457.
This is the reason this country is so screwed.

Rr
Rr
1 year ago

Business owners are treated like easy targets. It seems like it’s an easier decision to give the employee the win rather than the employer. A case of ‘the business has money’. It’s so easy for employees to leave or abandon work with no retribution or responsibility. But try the other way around?