It is a situation every manager hopes to avoid: an employee fails to show up for their shift and does not call to explain why. When days pass without any communication, it may seem like the employee has simply walked away from their job. However, managing this correctly is vital to avoid potential legal risks such as unfair dismissal claims.
In the Australian industrial relations landscape, abandonment of employment occurs when an employee’s actions or lack thereof indicate that they no longer intend to be bound by their employment contract. Because there is no automatic “trigger” that ends employment, employers must follow a careful process to confirm the situation.
Recognising the Signs of Abandonment
True abandonment is more than just a missed shift or a late arrival. It generally involves a period of unexplained absence where the employer has made several unsuccessful attempts to contact the worker. Before assuming a role has been abandoned, consider whether there could be a legitimate reason for the silence, such as a medical emergency or a personal crisis.
The Importance of Due Diligence
To protect your organisation, you should follow a structured communication process before taking any formal action.
- Attempt Contact Immediately: Start with phone calls and text messages. Document the dates and times of every attempt made.
- Send Formal Correspondence: If there is no response after a day or two, send a formal letter via email and registered post. This letter should clearly state the dates of the absence, request an explanation and provide a deadline for a response.
- Outline the Consequences: The correspondence should explain that if no contact is made by the deadline, the organisation will assume the employee has repudiated their contract and the employment will be terminated.
Navigating Modern Awards and Legislation
Following changes to many Modern Awards in recent years, specific “abandonment of employment” clauses were removed. This means that instead of relying on a specific award rule, employers must now rely on the principles of the Fair Work Act and common law.
The focus is now on whether a “reasonable” person would conclude that the employee has ended the employment relationship through their conduct. What is considered reasonable often depends on the specific circumstances, the length of the absence and the efforts made by the employer to reach out.
Reducing Your Risk
Prevention is always better than cure. Having robust internal policies and clear employment contracts can help manage these difficult situations. A well-drafted employee handbook should outline the expected procedures for reporting absences and the consequences of failing to do so.
If you are unsure about the wording of your current employment contracts or if you are facing a complex attendance issue, seeking professional HR advice is a proactive way to ensure your business remains compliant with National Employment Standards.
Clear communication and documented processes are your best tools for managing the unexpected. If you need assistance reviewing your workplace policies or navigating a tricky termination process, our team is available to provide expert guidance tailored to your specific needs.
