When an employee fails to attend work without explanation or ceases communicating with their employer, an employer may come to the view that the employee has abandoned their employment.

However, abandonment of employment is rarely straightforward. These situations do not occur in a vacuum and often involve complex legal and factual issues. Employers should be cautious before assuming the employment relationship has come to an end.

At its core, abandonment of employment involves the concept of repudiation of an employment contract. This occurs when an employee no longer intends to be bound by the contract. However, repudiation does not automatically terminate an employment contract.

The key question is whether the employee’s conduct would lead a reasonable person in the employer’s position to conclude that the employee no longer intends to be bound by the employment relationship.

In the Fair Work Commission (“FWC”), abandonment of employment usually arises in the context of unfair dismissal and general protections claims. This is because employees are only eligible to bring such claims where their employment has been terminated at the initiative of the employer.

Recent Fair Work Commission decisions

Recent FWC decisions highlight the difficulties employers face when seeking to rely on abandonment of employment as the basis for ending an employment relationship.

In one decision, an employee was sent home following a workplace dispute and subsequently stopped attending work. The employer attempted to contact the employee and asked them to explain their absence, but they failed to respond. The employer treated the employee’s absence as abandonment of employment.

The FWC took a different view. It found that the circumstances did not objectively demonstrate an intention by the employee to renounce the employment relationship. Instead, the FWC concluded that the employer had unilaterally terminated the employee’s employment. This was supported by the language used by the employer when attempting to communicate with the employee.

In another recent decision, an employer argued that an employee had abandoned their employment after relocating to Queensland. However, the employee was on medically certified leave, continued to provide medical certificates and had an active flexible working arrangement dispute before the FWC. Despite these circumstances, the employer treated the employment as having ended and paid out the employee’s entitlements.

In both cases, the FWC accepted that abandonment of employment can amount to repudiation of an employment contract, but found that the surrounding circumstances did not support such a finding. The FWC focused on the fact that, after not hearing from the employees, it was the employers who treated the employment relationships as having ended and processed the terminations.

Key takeaways for employers

An employee’s failure to attend work will not automatically constitute abandonment of employment. The recent FWC decisions demonstrate that an unexplained absence or breakdown in communication will not necessarily establish repudiation, particularly where there are other circumstances that may explain an employee’s conduct. Employers will be required to show clear evidence that an employee no longer intends to be bound by their contract before finding that abandonment has occurred.

Accordingly, employers should carefully consider the circumstances and assess whether the employee no longer intends to be bound by their employment contract before proceeding on the basis that there has been an abandonment of employment.

In practice, employers may find it more effective to focus on an employee’s obligations rather than attempting to establish abandonment of employment.

Most employment contracts, workplace policies and industrial instruments require employees to notify their employer when they are unable to attend work, and, where appropriate, provide evidence such as medical certificates. Where an employee fails to comply with those obligations, employers may have a clearer basis for addressing the issue than attempting to establish abandonment of employment.