One fine Tuesday morning, during the busiest time of year for your business, Jeremy doesn’t show up for work.  He’s normally a little tardy so no real concern.  But now he’s thirty minutes late and it’s more than annoying, you are getting a little concerned. 

There’s been no phone call, email, or SMS message to advise he won’t be in its time you pick up the phone and try contacting him, but there’s no answer.  You also try calling his next of kin from the information he gave you when he started with you, but they don’t respond either.  Further attempts made over the course of the next three days to contact Jeremy led to nothing and you still don’t know where he is or if he is coming back. 

Naturally, you are worried about Jeremy - has something happened to him? It’s honestly as if he has just fallen off the face of the earth.  However, you have a business to run, client orders to deliver and you rely on your employees to either show up for their rostered hours or advise that they need to utilise some of their personal leave.  What are your options?

Abandonment of employment

Abandonment of employment is a form of termination of employment initiated by the employee occuring when an employee does not attend work for an extended period without prior notice or reasonable explanation.  Before you simply clear out Jeremy’s desk and employ someone else, there are a number of things you need to do to ensure you aren’t exposed to an unfair dismissal claim.

Contact

We cannot stress this enough - you must make a reasonable effort to make contact with an employee that doesn’t show up for work.  Try calling, emailing, text messaging.  No response?  Attempt to contact their emergency contacts that you should have recorded.  This is an absolute must.  If you don’t make reasonable effort to contact an employee who seems to have gone missing in action, and you terminate their employment, you are opening yourself up to the prospect of an unfair dismissal claim.  You may find that your employee is incapacitated and unable to contact you so the emergency contacts are a vital part of the process and may clear up the mystery of the disappearance very easily. 

Determine Intent

You make contact - now what?  You need to determine whether or not there is a valid reason for the unexplained absence and if not, you will need to advise them of the implications of their continued unauthorised absence.  And those consequences are simple, it will be considered abandonment of employment and in most cases, if they have not returned within a specified period of time, you can move to terminate them.   At HR Staff n’ Staff, we would recommend you follow up with a written communication in the form of a registered letter that provides proof of receipt also allowing you to demonstrate contact was made and the opportunity to respond was provided.

Determining intent is really important as any claims that go before a court or industrial tribunal will focus on this in order to resolve the case.   Take for example a situation where an employee doesn’t show up for work and it is eventually discovered they were hit by a car, are now in hospital and not in any condition to make phone calls but will ultimately recover. 

Clearly the intent was not to abandon their job – it was something that was out of their control and it is likely that you will be on the receiving end of an unfair dismissal claim if you proceed with termination as a result of abandonment due to mitigating factors.   A phone call to an emergency contact may have enlightened you as to the situation and would allow you to avoid a nasty situation.

What next?

If you can’t make contact despite every effort being made, best practice is to outline the situation in a letter.  Confirm they have been absent and the amount of time they have not attended work.  Ask them to provide an explanation and advise that you will assume they have abandoned their employment if they do not respond within a specified timeframe.  

Again, you need to deliver this in a manner that provides confirmation of receipt so registered post may be the best option.  In this day and age an email may also suffice, but only where you have the ability to track email delivery and read receipts. If you know for sure that they have received your correspondence and they still have not responded in the designated time, you can proceed with termination. 

Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd [2017] resulted in the determination that the termination of an employee does not simply occur because the employer has deemed them to have abandoned their employment.  An employer, after following due process in terms of contacting and communicating the employee, can deem an employee to have abandoned their employment but they must then follow up by specifically actioning the termination as well.  That is, they must follow a process to finalise the employment with the paperwork that would occur with any other type of employee termination. 

What about Jeremy?

Remember, while you’re concerned about Jeremy, you also have a business to run. Balancing both is crucial. Given you have made reasonable efforts to contact Jeremy, move on to sending a registered letter outlining the situation and the consequences.  Set a timeframe for response.  If he doesn’t get back to you and you are absolutely sure he is in receipt of your letter, then go ahead and commence the termination on the basis of abandonment. 

Generally, it is accepted that if there is no response to this kind of communication within 7 days, it may be fair to consider they have abandoned their employment.

Key considerations

To avoid confusion and possible legal wrangles, we have the following recommendations:

• As always, HR Staff n’ Stuff recommends having thorough and clear policies regarding approval for annual leave, personal leave processes and absenteeism.  Your employees do have entitlements in the form of personal leave when required however they also have an obligation to contact you and communicate with you as to their expected day of return so that you can manage workflow and productivity.  It is a two-way street after all.

• Be aware that there are a number of Modern Awards that address abandonment of employment, and you need to be sure you are compliant with any specific Award or industrial instruments specific to your industry before you take action to terminate. 

• Always take notes and mark times and dates of your efforts to contact an employee who is absent for an unknown and unauthorised reason.  You must show reasonable efforts were made to make contact so use all means available – phone, mobile, text, email, social media.  And record these efforts in the event you are called up for unfair dismissal or hit with a general protection claim.

• Allow a reasonable time frame before going down the path of abandonment of employment.  If your employee misses one shift it is not reasonable to conclude it was abandonment – it could have been miscommunication or misunderstanding of a roster.  But, if they do miss one shift and you try contacting them and they miss a subsequent shift, you may have grounds to consider abandonment.  Always ensure you exhaust all efforts to make contact and rule out approval of leave by another manager.  You need to protect your business.

This can all seem quite onerous on the employer, but the more effort you make to follow some reasonable steps, the more you are actively protecting your business. While the outlines above may seem lengthy, in reality this could all occur in a week or two.

If you are in any way unsure of your rights as an employer to terminate an employee who has not shown up for work, please call us at HR Staff n’ Stuff as we are here to help.