Employers must take certain steps before determining an employee has left their job
There are a number of steps employers should take when determining whether an employee has abandoned their job, according to experts in Lane Neave’s Employment Law team.
This is because abandonment is not always clear-cut – even if an employee walks off the job, doesn’t return from leave, or fails to show up at work for an extended period of time.
Top tips for employers include avoiding assumptions, not rushing the process and making reasonable efforts to contact the employee in question.
Employment agreements often include an “abandonment” clause, which effectively states that if an employee is absent from work for an extended period without explanation, they may be considered to have abandoned their employment.
The essential criterion is that the employer must have good grounds to believe the employee intended to have left their employment for good, as established in Surplus Brokers Ltd v. Armstrong [2020] NZEmpC 131. This means employers cannot simply assume employees have abandoned their role if they miss work for a few days. Efforts must be made to contact them.
When an employee does not show up for work, the employer is obligated to reach out and try to contact them to determine whether they plan to come back.
Employment New Zealand has some suggestions for contact, that we have built on below:
Employment agreements generally specify the number of consecutive shifts that will amount to abandonment. Provided this is two or more days, it should suffice. However, if an employee has left due to some highly emotional event or a medical emergency, they are unlikely to provide an explanation immediately and it may be appropriate to wait longer before considering whether they have abandoned their employment.
In Spotswood v. Concrete Structures (NZ) Ltd [2024] NZERA 9, the Employment Relations Authority considered that a single phone call to the employee was insufficient – reasonable steps could have included communication by email and/or by post or urgent courier.
Records of all attempted contact and communications should be kept, in the event the employee later disputes the termination of their employment. The bottom line is that an employer must act fairly and reasonably and must not preemptively decide that an employee has abandoned their employment.
If the employee has not responded to the initial letter by the requested timeframe, an employer should advise them by phone, email and in writing that their employment is now considered terminated by reason of abandonment.
If the employee returns to work after an unexplained period of absence, this is not abandonment of employment. Rather, this is a case of unauthorised leave, which should be handled in the same way as any other suspected misconduct: see Loh v. Pauanui Publishing Ltd [2002] ERNZ 64.
Joseph Harrop is a senior associate specialising in employment law and health and safety law at Lane Neave in Auckland. Elisabeth Giles is senior solicitor in the Employment Law Team at Lane Neave in Christchurch. The authors would like to acknowledge the assistance of Stella Smith, a law clerk at Lane Neave, in the preparation of this article.
