Even if an employee disappears without contact, their job doesn’t terminate on its own. Here’s what employers must do to end the employment relationship lawfully.
Q. We have an employee who has been absent from work for approximately two weeks and has not made any contact with management, nor has he responded to attempts by workmates to contact them. The company has concluded that the employee has abandoned their employment. The company has complied with the abandonment provisions under the applicable award (Manufacturing and Associated Industries and Occupations Award 2010). Having followed the proper process, can the company now presume the employee has resigned, or does it require some other action by the company, such as an official notification to the employee (who appears to be uncontactable)?
A. This issue has been the subject of a recent matter before a Full bench of the Fair Work Commission, which confirmed that the employer must take the additional step of ending the employment relationship when an employee abandons their employment. This means the abandonment clause in a modern award does not operate to end the employment relationship automatically.
The Full Bench also said that if the award automatically terminated the employment when an employee abandoned their employment, it is not permitted or required in a modern award. The Fair Work Act (s.137) renders it ineffective.
See B v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia [2017] FWCFB 38 (13 January 2016)
Common law
Likewise, in common law, the abandonment of their employment by an employee constitutes a repudiation of their employment contract. The contract is not, however, terminated until, or unless, that repudiation is accepted by the employer. It is the action of the employer in accepting the repudiation that brings about a termination of the employment.
The Bottom line
While an employee may have abandoned their employment, and there is a process under an applicable award that deals with the issue, the employer is still required to take the additional step of ending the employment relationship.
Need help managing employee abandonment?
My Business Workplace subscribers can access the Workplace Advice Line for expert guidance. Simply log into your Workplace account and visit the Support page to see your available calls.
You can also download ready-to-use templates designed to keep your business compliant, including:
Not a subscriber yet? Learn more about My Business Workplace and how it can help your business stay compliant here.
