Abandonment of employment does occur, but the question is what to do next. Employers can educate themselves about what constitutes abandonment of employment in order to take the right steps when dealing with staff who have abandoned their posts.

 

What is considered abandonment of employment?

Abandonment usually arises in circumstances where an employee is absent from work without a reasonable excuse for an unreasonable period of time. The employee also hasn’t communicated to the employer any reason for the absence. For an employee to have abandoned their employment, it must be clear the employee has clearly demonstrated an intention to no longer be bound by the terms of the contract of employment. 

See Searle v Moly Mines Limited [2008] AIRCFB 1088; GlaxoSmithKline Australia Pty Ltd v Gauci [2008] AIRCFB 439; Lodder v Department of Families, Housing, Community Services and Indigenous Affairs [2008] AIRC 684 — Hoffman C. 29/9/08 and Chelvarajah v Kirwan Security Services — AIRC — Mansfield C. PR935865 13/8/03.

 

Does abandonment void the employment contract?

No. Under common law, abandonment of employment is treated as a repudiation of the employment contract by the employee. However, the contract is not terminated automatically.

The employment relationship only comes to an end if and when the employer accepts the repudiation. If an employer incorrectly treats an absence as abandonment and takes action to end the employment without clear evidence of intention, the termination may be found to be at the initiative of the employer, exposing the organisation to potential unfair dismissal or general protection claims.

For example, where an employee has notified their employer that they are unable to attend work due to medical reasons, termination in those circumstances is likely to be regarded as employer‑initiated, rather than abandonment, even if the employee is absent for an extended period.

 

What steps should an employer take?

Employers should approach potential abandonment situations cautiously and methodically. Best practice includes the following steps:

1. Attempt contact
Make reasonable efforts to contact the employee via phone, email, text message and, where appropriate, through emergency contacts or colleagues.

2. Allow reasonable time to respond
Absences of one or two days, without more, will usually not amount to abandonment. Employers should allow sufficient time for the employee to respond, particularly where personal, health or family issues may be involved.

3. Send written correspondence
If contact cannot be made, send a written letter to the employee’s last known address asking them to contact the employer urgently and explain their absence. The letter should clearly outline the potential consequences if no response is received.

4. Assess the circumstances
Consider whether there are known or likely explanations for the absence, such as illness, injury, caring responsibilities or other personal circumstances.

5. Review applicable instruments
Check any relevant modern award, enterprise agreement or employment contract provisions that may address absence or abandonment.

6. Form a reasonable view based on evidence
Only where the employee has failed to respond, has provided no satisfactory explanation, and the circumstances objectively indicate an intention not to return should the employer consider that abandonment may have occurred.

7. Document all steps
Keep clear records of all attempts to contact the employee and the reasoning behind any decision made. Incorrectly assuming abandonment without following a fair process can result in a finding that the employer has terminated the employment.

 

Abandonment of employment after taking leave

Abandonment issues can also arise when an employee does not return to work after approved leave, such as annual leave.

Where an employee fails to return as agreed, does not communicate with the employer, and has been clearly warned that failure to return may result in termination, Fair Work has found abandonment to have occurred in some circumstances. Each case, however, depends heavily on the facts and the steps taken by the employer to clarify the employee’s intentions.

 

Incapacity to return to work

Another potential scenario is one in which an employee does not return to work after taking leave for a serious medical condition.

An employee who had a medical certificate indicating she was totally incapacitated for work for three months, and moved location in that period, was deemed not to have abandoned her employment. See Susann Sharpe v MCG Group Pty Ltd [2010] FWA 2357 22 March 2010.

 

Modern awards and abandonment of employment

Some modern awards contain a provision regarding abandonment of employment. This usually regards an absence of more than three consecutive working days without an employer’s consent and no notification to the employer. A further 14 day period of absence without satisfying the employer there is a reasonable cause would result in the employee being deemed to have abandoned their employment.

For example, clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 refers to abandonment of employment, although reference should be made to the relevant industrial instrument to determine whether minimum periods of absence are stipulated before the employer can presume an employee has abandoned employment. 

For interpretation of a similar provision to the modern award, see Georgievski v Caroma Industries Limited [2001] AIRC 1135.

 

Unreasonable withholding of leave by the employer

Where permission for leave of absence is unreasonably withheld by the employer and the employee proceeds on such unauthorised leave, abandonment of employment would not apply. 

See Dun & Bradstreet (Australia) Pty Ltd v Robbie [1999] NSWIRComm 316 (20 July 1999). The NES also provides that an employer cannot unreasonably refuse an employee’s application for annual leave.

 

Key takeaway for employers

Abandonment of employment is a high‑risk area if handled incorrectly. Employers should not rely on assumptions or short periods of absence. Instead, a careful, documented and evidence‑based approach is essential. Before treating employment as abandoned, employers should ensure they have:

  • made genuine attempts to contact the employee

  • allowed reasonable time for a response

  • considered medical or personal explanations

  • reviewed relevant industrial instruments

  • objectively assessed whether the employee intended to end the employment relationship.

When in doubt, obtaining legal or HR advice before taking action can help reduce the risk of an adverse outcome.