Abandonment of Employment: Your Obligations as an Employer
When abandonment of employment takes place within your organization, you may think it’s a clear cut case… think again.
It’s a common issue that an employee does not show up for work when expected. Maybe they’re sick? Maybe they forgot to adhere to the Company absence policy and call in? Maybe something urgent came up on the way to work? Usually, these non-attendance situations can be handled pretty easily and efficiently if managed correctly, so normal service can resume.
But what happens if the employee just never returns to work or fails to provide the Company with reasoning why? You may just assume the employee has resigned and go ahead with recruiting for the vacancy or terminate on the grounds of abandonment of employment without digging deeper; but is that the right thing to do?
The answer is no!
Some employers believe that an employee who abandons their employment automatically gives the organization enough grounds to dismiss safely when in fact, that’s not the case. In an abandonment situation, employers need to act fast and make genuine, reasonable attempts to contact the AWOL employee to avoid putting their business at risk of a costly claim. Thought needs to be given to all circumstances of each individual case and some of the factors to be considered should include the following:
- How many days of unauthorized absence has there been with no explanation?
- What and how many attempts have been made by the employer to contact the employee?
- Is the Company policy clear on what action is taken if the employee fails to get in contact and provide sufficient reasoning for the absence?
- What is the previous work and attendance history of the employee?
- Are there any other underlying factors to consider such as health issues or workplace conflicts?
However, some Awards have abandonment of employment clauses and in the recent case of, Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia, the outcome has caused a lot of controversy thus highlighting the complexity of this issue. Mr Bienias brought forward an Unfair Dismissal Claim and the Full Bench of the Fair Work Commission was of the view that Clause 21 of the Manufacturing and Associated Industries Occupations Award 2010 does not have the automatic effect of bringing the employment to an end in a situation which might be regarded by the employer as abandonment of employment. Therefore this meant that the employer terminated the employee at the employers initiative. There were other serious factors taken into consideration in this case which included poor performance and mental health issues, but unfortunately, the employer’s efforts of dealing with the matter was just not enough.
As a result of the above case, the Fair Work Commission is currently reviewing whether the Abandonment of Employment Clause 21 of this award and equivalent provisions in five of the other modern awards should still be included under section 156 of the Fair Work Act 2009. The review is to be conducted as part of the Fair Work Commission’s four-yearly review of modern awards.
The decision is still pending and should be determined before or on the 18th May 2017.
If you need assistance managing your workplace legislative obligations give us a call at Human Resource Services on 07 5530 1571.
