Missing in action? When has an employee abandoned their employment?

The lack of an immediate reason for an employee failing to turn up to work cannot be construed as ‘abandonment’ without being properly investigated. This message was recently enforced by the Fair Work Commission (FWC) who ordered Atlas Steel, a supplier of steel products, to pay $7,000 to an employee after mistakenly assuming they had abandoned their employment.

The Company waited only three days before withdrawing its visa sponsorship of the employee, a Canadian welder, due to his unexplained absence. Whilst the Company did not hear from the employee during that time, no attempt was made by the Company to contact the employee themselves.

Was it ever reasonable for the Company to conclude that the employee no longer wanted to work for them?

Background & Evidence

The FWC accepted the following evidence:

Within his first four months of employment with the Company, the employee had been absent for a total of 41 days as a result of a hand injury that happened at work and due to stress leave.

The most recent absence was an instance of stress leave in response to the Company’s decision to not take immediate action against another worker, who kicked the employee during a recent altercation.

Being anxious and upset about the incident, the employee reported it to the police and raised it with his manager.

When the employee was advised that action would not be taken until further information was uncovered as to who was at fault, he immediately left the work site. The following day he saw a doctor and commenced stress leave.

The employee claimed he forwarded his medical certificate immediately. However, the Company claimed to have only received it 12 days after the employee’s first absent day, being the day after he found out from the Department of Home Affairs that his visa was denied.

The employee also lodged a WorkCover claim during his stress leave, but again the Company claimed it was not notified of this until sometime later.

In response to the above, Commissioner Gregory stated he was:

“satisfied that the evidence indicates that rather than acting as someone who was abandoning their employment, [the employee’s] actions were instead consistent with someone who was suffering at the time from work-related stress and anxiety, and required a period of leave from work as a consequence.”

What did the Company get so wrong?

In applying the new approach implemented by the full bench as part of its four-yearly review of modern awards, Commissioner Gregory confirmed that “obvious steps” were foregone. At the very least, the Company should have:

  1. Conducted an investigation into the altercation; and
  1. Attempted to contact the employee “to ascertain why he was not at work before coming to the seemingly premature conclusion that he had abandoned his employment”.

The decision – unfairly dismissed

Commissioner Gregory held that the employee had not “abandoned his employment on the basis that he has ceased to attend his place of employment without proper excuse or explanation”.

Before the Company came to this conclusion, an explanation should have been sought and “if it had done so it would have found that a different scenario was unfolding.”

Having concluded that the Company didn’t meet the minimum expectation of a reasonable employer under the circumstances, the employee was deemed to have been unfairly dismissed and was awarded $7,022.40 in compensation. This included a 20% reduction that was applied due to WorkCover concluding that the employee was, in fact, the instigator in the altercation where he was kicked by another worker.

Beyond the basics

Abandonment of employment can put employers in some very difficult positions, even if they do follow the “obvious steps” outlined above.

  • How long should you wait for an employee to return?
  • What if they cannot be contacted?
  • If and when should they be paid any outstanding entitlements?
  • Should their departure be treated as a dismissal or a resignation?

For advice on similar scenarios, and how to determine if abandonment of employment has occurred and what to do once this has been established, please do not hesitate to contact Nick Stevens, Jane Murray, and Angharad Owens-Strauss.

Read the full decision here

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