Abandonment of Employment
An employee may be taken to have abandoned their employment if he or she simply 'walks off the job', or fails to return to work after a period of authorised leave. In such circumstances, the employer will be reasonably entitled to conclude that the employee no longer intends to be bound by the employment agreement.
However, given that the Fair Work Act 2009 does not itself deal with abandonment of employment, employers are simply left with a handful of Modern Awards that contain rules on abandonment, and a complex body of case law, to guide them in determining whether an employee who appears to have abandoned their employment is deemed to have terminated the employment relationship.
Of the 123 Modern Awards that are currently in operation, only 5 Modern Awards contain a clause on abandonment of employment, which creates the following rules that only apply to those Modern Awards:
(a) The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is evidence that the employee has abandoned their employment.
(b) If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.
The Modern Awards that contain such a clause are as follows:
- Nursery Award
- Manufacturing and Associated Industries and Occupations Award
- Graphic Arts, Printing and Publishing Award
- Contract Call Centres Award
- Business Equipment Award
The problem for employers that are not covered under any of the above Modern Awards is that the clarity provided by the above clause would not strictly apply where an employee appears to have abandoned his or her employment.
If an employment agreement contained a clause relating to abandonment of employment that was consistent with the above, then this would provide clarity in such circumstances.
On the other hand, if an employer was not covered under any of the above Modern Awards, and the relevant employment agreement did not contain a clause relating to abandonment of employment, it is thought that by nevertheless following the above rules, an employer may have sufficient grounds to argue that an employee had in fact abandoned his or her employment.
In summary, it is important to note that an intention to abandon employment will not lightly be found or inferred. The two key factors are:
(a) that the employee has made no attempt whatsoever to contact his or her employer; and
(b) the period of unauthorised and / or unexplained absence is sufficient.
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