Abandonment of Employment occurs when the employee “walks off the job” or fails to turn up to work. Equally, the employee fails to respond to enquiries from the employer about his or her non-attendance. When this happens, it is reasonable for the employer to be entitled to conclude that the employee is no longer bound by the contract of employment.
To be legally protected it must be shown that the employee intended to end the employment by not reporting for work. It is important that if abandonment of employment is to be established, that the employer is able to demonstrate that the employee knew, or ought to have known, that his or her unexplained or unauthorised continued absence from work meant that he or she was terminating their employment.
Note that the term “Abandonment” is not covered within the Fair Work Act 2009. The employer must refer to several Modern Awards that cover the particular rules surrounding abandonment to guide them into determining whether abandonment of employment has actually transpired and if it is then acceptable to terminate their employment.
There are approximately 123 Modern Awards, but only five of these awards contain a clause for when abandonment has taken place. These include:
- Nursery Award
- Manufacturing and Associated Industries and Occupations Award
- Graphic Arts, Printing and Publishing Award
- Contract Call Centres Award
- Business Equipment Award
As such, the following only applies to these particular 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 challenge is finding clauses in the relevant awards that pertain to abandonment that will assist in ascertaining the specific conditions to that employee. However, an employment agreement can contain a clause on abandonment of employment, which is separate to the award that could then provide a guideline in such a circumstance.
Should the employee not be covered by any of the above Modern Awards or have a relevant clause in their employment agreement, the employer should use whatever they can to provide sufficient grounds to establish that the employee did indeed abandon his/her employment.
To learn more or receive assistance in the process of a worker’s abandonment and their potential termination of employment, contact us at Lime Results.
Source: Institute of Certificate Bookkeepers further information can be found at ato.gov.au and fairwork.gov.au. The information provided here is of a general nature for Australia and should not be your only source of information.