The Fair Work Commission (FWC) has given employers some clarity as to what an employer must do when they believe an employee has abandoned their employment.
What is abandonment of employment?
In a nutshell, abandonment of employment is when an employee doesn’t show up for work and they have not provided their employer with a reason why they have not attended. An employer can terminate an employee where it reasonably believes that the employee does not want to work for them anymore. Exactly what a ‘reasonable belief’ entails is a little more complex and has routinely seen employers falling foul of their obligations and finding themselves before the FWC.
The decision
In Orry Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687, Atlas Steel dismissed Mr Thompson, including withdrawing his visa sponsorship, after he was absent for three (3) days without any contact or form of explanation. Atlas Steel did so despite having made no attempt to contact Mr Thompson during this time.
On Mr Thompson’s last day of work he had been involved in an altercation with a colleague. Atlas Steel was aware of this incident and separated the workers until it could assess the situation further. The next day Mr Thompson had seen his GP who had recommended he take stress leave following the incident. Atlas Steel claimed that it was not aware that Mr Thompson was on medically approved stress leave and did not receive a medical certificate from him in relation to the absence until sometime after it had dismissed Mr Thompson. Atlas Steel argued that it was not required to make any attempts to contact Mr Thompson in the circumstances.
The FWC disagreed with Atlas Steel and in the decision, set out the “minimum expectation of any reasonable employer in the circumstances”, being:
- Firstly, investigate any circumstances that occurred prior to the employee’s failure to attend work; and
- Secondly, attempt to contact the employee to ascertain why they have not attended work.
That the Commission has made no reference to actual contact, rather only an attempt to contact, is noteworthy.
What this means for employers?
Before an employer can fairly dismiss an employee whom they believe has abandoned their employment, they must first investigate and then attempt to contact the employee for an explanation. Failing to take these steps may put the employer at risk of being on the wrong end of an unfair dismissal claim.
If you require further information or have any queries in relation to this alert, please feel free to contact Matthew Smith or Michelle Dawson.
Acknowledgements
We would like to acknowledge the contribution of Nicole Davis to this article.
