It is important for an employer to be aware that an abandonment of employment will not simply arise as soon as an employee has not turned up to work for a shift they were required to do and are aware of the rules that need to be followed to ensure there has been a genuine abandonment.
An abandonment of employment is usually characterised by an employee being absent from work without a reasonable excuse for an unreasonable period of time.
For an employee to properly have abandoned their employment, it must be clear that the employee has demonstrated an intention to no longer be bound by the terms of the contract of employment, for example, they have no intention to return to work or continue doing the role.
Abandonment of employment is not dealt with under the Fair Work Act 2009 and is not discussed in the Vehicle Award, Clerks Award, Passenger Vehicle Award or either of the Road Transport Awards (It is only discussed in 5 out of 122 Modern Awards).
Due to the absence of legislated guidelines dealing with an abandonment of employment it is best practice for an employer to go to lengths to show numerous attempts at communicating with the employee were made.It also must be shown that they gave the employee a specified and reasonable time to respond to a notice of abandonment.
Dealing firstly with attempting to contact the employee, this cannot simply be a single call or email and would require multiple and various attempts at contact being attempted. This can include phone calls, emails, text messages, and registered mail.
If contact is made with an employee and they state will not be returning then their employment can be terminated. If there has been no success with this contact however an employer should then try to contact the employee’s nominated contact to see if they are aware of their whereabouts.
If the above does not result in any contact being made with the employee a letter should be sent, preferably by registered post, asking the employee to make contact or their employment will be considered as abandoned. In terms of how long to give an employee to respond, as stated earlier a reasonable amount of time needs to be given, for example, one day won’t be sufficient. It is also preferable to send this letter via registered post and another means, such as an email.
If the reasonable time period specified passes with no contact being made by the employee a confirmation of abandonment letter can be sent. Where employment is abandoned all accrued leave entitlements and unpaid wages must be paid out to the employee.
Where an employee does make contact during this process, whilst the employment can’t be considered abandoned, you can still then proceed towards appropriate disciplinary action.
If you had a query regarding an abandonment of employment, please contact the Workplace Relations Department on 8291 2000 or via email by clicking here.