When does an absence become abandonment?

Abandonment of employment is a situation where an employee stops showing up for work without a valid reason or explanation, and without informing their employer of their intention to resign.

Where employment ends by reason of abandonment, it is a termination at the employee’s initiative.

However, not every absence or failure to report for work can be construed as abandonment of employment.

What are some examples of situations where an employee may have abandoned their employment?

An employee may be seen as having abandoned their employment in a number of circumstances. An obvious example of abandonment of employment is where an employee fails to attend work and makes no contact with their employer to provide reasons for their absence. Other examples include where an employee on personal leave stops providing medical certificates or other evidence and does not contact their employer to explain why, or where an employee on annual leave does not return to work at the end of their approved leave period.

Whether an employee has abandoned their employment can be hard to prove. Even where an employee is in breach of a company policy, it does not necessarily follow that the employee has in fact abandoned their employment.

Generally, an employee has abandoned their employment where the employee clearly (through their actions or inaction) indicates that they do not wish to continue to work. Some examples include conduct such as not returning to work after walking off the job or after a holiday or accepting employment elsewhere.

The situation is less clear where an employee stops communicating or making direct contact with their employer.

An employer must demonstrate some key elements to prove that employment has terminated on the grounds of abandonment:

• the employee’s absence or failure to report for work; and
• the employee’s clear intention to end the employment relationship.

The second element is critical, as it distinguishes abandonment of employment from absenteeism or unauthorised leave.

What should an employer do if they suspect an employee has abandoned their employment?

Employers should be mindful that a decision regarding abandonment of employment may result in an unfair dismissal claim. It is important for the employer to make reasonable attempts to contact the employee and ask about their absence and intentions regarding returning to work before concluding that the employee has abandoned their employment.

The employer must be satisfied that every reasonable attempt has been made to contact the employee and advise of the possible implications of their continued unauthorised absence.

The first step is to try to contact the employee by telephone. If the employee is unreachable via telephone, the employer should leave a message advising the employee to make contact as soon as possible to explain their absence. The employer should keep a note of the date, time, and message left, in case this becomes an issue later.

If the employer is unable to make contact via telephone, they should consider other options including:

• email
• social media accounts
• contacting the employee’s emergency contact.

It’s also possible that the employee has contacted another staff member to inform of their absence, so employers should check if other staff have heard from the absent employee.

What if the employee fails to respond or make contact after the employer has made several attempts?

Where these methods of contact have been unsuccessful, the employer should send the employee a letter directing them to contact the employer and provide an explanation for their absence. The letter should clearly state that the employee’s absence is unauthorised and failure to attend work or contact the employer to explain their absence within a specified time, may result in the employer accepting that the employee has terminated their employment on the basis of abandonment. It is recommended that this letter is sent by registered post or some other form of delivery that requires the employee to sign on receipt.

If the employee fails to respond by the specified date in the first letter, it is recommended that the employer follows up with a second letter that reiterates the first letter and provides a further specified time for contact. The second letter should also clearly state that the employee is on an unauthorised absence and failure to attend work or explain the reason for the absence may result in the employer accepting that the employee has terminated their employment on the basis of abandonment.

If the employee still makes no contact following the second letter, the employer should send a final letter confirming that it has accepted that the employee has terminated their employment on the basis of abandonment by failing to make contact with the employer as directed in the previous letters.

What if the employee responds after receiving the employer’s letters?

As outlined above, the employee must be given an opportunity to respond in a specified time frame to explain their absence. There may be some situations where an employee has a valid reason for being absent and not making contact i.e., they may have been in a serious accident or other emergency or suffering from an illness.

Where an employee provides an explanation, the employer must decide whether that explanation reasonably justifies the employee’s absence and failure to notify. If the employer does not consider the employee’s explanation to be reasonable, the employer may take further action. If the employee has not engaged in this conduct before, often it will be appropriate to issue the employee with a written warning. The employee should also be reminded of the leave policy (if there is one) and the notice/evidence requirements if they are unable to attend work again.

Where the employee does not provide a reasonable explanation, e.g. “I couldn’t be bothered coming in”, the employer may decide that this is unsatisfactory and move to terminate the employee’s employment. However, this will likely be seen as a termination at the employer’s initiative and not a case of abandonment.

Recent Fair Work Commission decision

The Fair Work Commission (FWC) has found that an employee who repeatedly provided “unacceptable” medical certificates to cover his absence effectively abandoned his employment.

The employee lodged an unfair dismissal application after he was dismissed in April 2023 after being absent for more than 20 working days without authorisation. The employee was on approved leave between 1 December 2022 and 12 January 2023 for a psychological condition.

Background

On 14 January, the employee submitted a medical certificate issued by a medical centre in the Philippines, stating that he remained unfit for work due to an upper respiratory tract infection.

The employer notified the employee that it could not accept the medical certificate as it did not specify the dates he would be unwell, and under the relevant enterprise agreement he was required to submit certificates issued by a registered health practitioner in Australia. The employee responded that the certificate was “the type of medical certificate they issue here” and indicated that he was waiting for an appointment with a clinical psychologist who would develop a treatment plan, after which he would be able to provide specific dates that he would be off work.

Between 14 January and 23 February, the employee submitted five medical certificates referring to physical illnesses and symptoms, all issued in the Philippines and without a specific date range, despite repeated requests from the employer to send a compliant certificate. He also sent a signed affidavit for his psychiatric treatment.

On 14 March, the employer informed the employee it was considering his dismissal on the basis he had abandoned his employment, referring to the following key factors:

• the employee had been absent for more than 20 days without permission
• the employee had not provided a valid medical certificate in line with the enterprise agreement’s requirements
• the employer was concerned that the employee had relocated to the Philippines without informing it of his plans.

After receiving another affidavit in which the employee disputed that he had to provide a medical certificate from an Australian health practitioner and accused the employer of trying to terminate his employment to avoid paying for his mental health treatment, the employer terminated his employment.

In arguing his case, the employee claimed the employer failed to advise him on how to obtain a medical certificate from a registered Australian health practitioner while he was overseas.

Decision

The FWC accepted that the relevant enterprise agreement required the employee to submit a medical certificate from a doctor registered to practise in Australia, and the employer acted reasonably in notifying the employee that he was absent without approval and in providing him with an opportunity to prove that he had not abandoned his employment.

The employee’s signed affidavit lacked important and relevant information about his medical situation, and the FWC was satisfied that the employee was being “deliberately vague and misleading”, concluding that the employer had a valid reason to dismiss.

In rejecting the employee’s unfair dismissal application, the FWC highlighted the following:

• the employee had submitted a medical certificate for a throat infection, not a long-term psychological illness
• the employee provided a “deficient” affidavit
• the employee failed to provide any information as to the length of time he would be off work
• the employee failed to indicate if he would be able to resume work while undergoing psychological treatment.

The FWC held that “such a scenario is an unrealistic restriction on any employer… The actions, or lack thereof, of the [employee], forced the [employer’s] hand in relation to his dismissal. The [employer] was incredibly patient with the [employee].. If he did not understand the emails from the [employer], then he should have said that in an email or made a call from his mobile to the [employer]. For the [employee] to keep submitting unacceptable doctor’s certificates was inappropriate and frustrating behaviour.”

The FWC determined that the employee had abandoned his employment by not complying with the enterprise agreement requirements, despite the employer’s numerous requests and warnings.

Singh v Commissioner for Public Employment [2023] FWC 2251 (25 October 2023)

Key lesson for employers and employees

Abandonment of employment is an issue which can have legal risks for both the employer and the employee.

Employers should have clear policies and procedures on how to deal with employees who fail to attend work or communicate their reasons for absence.

Employees should be aware of their obligations to comply with their employers’ policies and codes of conduct in relation to being absent from work and providing notice and evidence.