Employment lawyer provides insights, tips for HR on how to handle issue – and avoid claims of constructive dismissal
Earlier this month, the Fair Work Commission handled a case where a worker argued unfair dismissal after he was allegedly away from work because of his vaccination status.
The Commission sided with the employer, determining that the worker had abandoned his employment, rather than having his employment terminated. It noted that: there was no evidence of an authorised absence, whether paid or unpaid leave; no contact from the worker for over a year; and no evidence that the employee had attempted to work.
But what exactly is an ‘abandonment of employment’ and how can it be determined?
Defining abandonment of employment
An abandonment of employment is a very old legal concept, says Andrew Douglas, managing principal at FCW Lawyers.
“It's built around what's called repudiation,” he told HRD Australia. “That's where an employee, through their actions or omissions, demonstrates an intention to no longer be bound by their employment contract. And you see it arising in a number of circumstances: The most common one is that people go on leave overseas, and they never come back. They've abandoned their employment.”
Other common situations where an abandonment occurs is in police matters, when an employee may be locked up; and for people with medical illnesses where they are unable to communicate because of the nature of their illness, Douglas said.
And then there are genuine cases of abandonment where an employee just doesn’t turn up to work.
Communication to avoid constructive dismissal
The way to determine when someone has abandoned their employment, Douglas explained, is if an employer writes or communicates with an employee and says, “If you don't come back to us in a few days’ time, we're going to have to accept that you no longer wish to work with us.” And if the employee is silent, the employer accepts their repudiation of contract.
The key with these cases is that the employer must have evidence of the employee showing an intention to not want to be in the contract, Douglas added.
“When a person abandons employment and you can demonstrate it, they have no rights under the unfair dismissal regime because it is not a termination at the behest of the employer, it is a terminating by the employee.”
However, if there are fundamental behaviours that occur that prevent an employee from going to work, that can result in a constructive dismissal, Douglas said, “because you can show that the behaviour of the employer was inconsistent for the continuation of the employment contract and, as a result, you eventually left,” he said.
“That would be the argument that someone would run, that ‘Actually it was the employer’s behaviour that rendered it unsafe for me to come to work and I just couldn't come back to work.’”
What can HR teams do about abandonment of employment
The first step for HR teams to do when they suspect an abandonment of employment is to try and contact the employee.
“Ascertain whether the person knows that you're contemplating abandonment of employment and use every reasonable resource to contact and advise them that you're forming this level of concern,” he said. “Once you contact them and the person provides an answer to you, run over protected attributes that exist that prevent you from taking more immediate action.”
For example, is there a protected attribute if an employee says they are caring for a spouse or if an employee’s health is impacted during their pregnancy and they need more time off? And from there, you can look at whether there are any reasonable adjustments that can be made, Douglas said.
“If there is no personal attribute and the person is unable to provide you with certainty of being ready and willing and able to work, they are evincing an intention to no longer be bound by the contract,” he said.
“And you would serve them a notice saying that you've accepted their repudiation of contract. And from that moment, they would be terminated by their own offence, not by you. That way, you'll be protected from the unfair dismissal process.”
Respect important in process
During the process of determining whether an employee has truly abandoned their employment, Douglas emphasised the importance of employers being respectful and giving a reasonable amount of time for employees to respond to the messages sent.
“Remember, nothing is lost in this process by having two or three days,” he said. “We must learn when we deal with people, no matter how difficult they are, to treat them respectfully because when you come before the Fair Work Commission or any other tribunal or court, the thing that changes the mind of the person who's adjudicating is the behaviour of the employer, not the behaviour of the employee.”
Also, employers should build in extra time for the employee to respond and speak in language that is clear and understandable when discussing a possible abandonment, Douglas said.
“Employers should always be on the higher ground, never on the lower ground,” he said. “They should always be seen to be the best people because all of our legislation around employees is called benevolent legislation — it’s designed to protect employees — which means you need to be good.”
