When Has an Employee Abandoned their Employment?
On occasion I am approached by perplexed Employers who mount a convincing case that, despite their best efforts at determining whether a particular Employee has abandoned their employment or not, for all intents and purposes it appears that the Employee has no intention of returning to their previous position. So is it enough that a position can be advertised even though an Employee has not responded to emails, phone calls, faxes (yes, some businesses still use them, believe it or not!), letters, etc, for over a month? Whilst there are some modern awards that do contain provisions dealing with the abandonment of employment, what about the rest of us? What are we supposed to rely upon?
Although you may find it somewhat surprising, an Employer cannot infer abandonment until and unless it becomes clear that the Employee has clearly expressed their intention that they no longer intend to be employed. Seems overly onerous at first blush, doesn’t it? The Caselaw on the matter indicates that it is unacceptable for an Employer to conclude that an Employee has abandoned their employment by failing to attend work or failing to respond to correspondence requiring the production of further evidence. This is especially so where there is some behaviour that indicates that the Employee does not intend to terminate their Employment Contract.
There is however guidance available to Employers who are looking at establishing whether a case for or against abandonment is likely. These include the Employer undertaking their best efforts to contact the Employee via phone, Facebook, email, etc, and discussing the matter; establishing formal contact by registered mail; verifying with external organisations such as Workers Compensation personnel, Doctors, etc, that the Employee has not notified them of their absence; and being conscious of the Employee’s personal circumstances. For instance, whether there has been a death in the Employee’s immediate family requiring unexpected travel overseas where contact is limited, mental health issues, etc. To discuss further, please do not hesitate contacting Zena Dabboussy-Bardouh, Principal of ZDB Legal Services, on (02) 9758 8133 or zena@zdblegal.com.au. After all, the last thing you want and need is having to deal with an Unfair Dismissal Claim!