Abandonment of employment arises where for an unreasonable period of time an employee is absent from work or fails to return to work after a period of authorised leave without communicating or providing the employer any valid reason for the absence.
Recent case law has clarified that, in circumstances where an employee has abandoned their employment, the employer is required to take an additional step in order to terminate the employment relationship.
Fair Work Act and Modern Awards
The Fair Work Act 2009 (FW Act) does not explicitly deal with abandonment of employment, although a handful of Modern Awards currently provide guidance to employers as they contain provisions relating to the abandonment of employment.
However in a recent decision of the full bench of the Fair Work Commission (FWC) it was held that an employer cannot rely solely on the Modern Award to terminate employment. It was confirmed by the FWC that where an employee abandons their employment, the employer must take an “additional step of terminating the employment and if it does not do so employment continues” (Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38, [41] (B v Iplex)). That is, it is incumbent upon the employer to rely upon the employee’s repudiation or grounds for the employer to bring the contract to an end.
It is also important to note that the Full Bench held, pursuant to section 137 of the FW Act, if a term in a modern award renders the automatic termination of employment when an employee abandons his or her employment, “it is not a term that is either permitted or required in a Modern Award” (B v Iplex, [49]). As a result, on 1 February 2017, the FWC announced that it will review abandonment of employment terms contained in all relevant Modern Awards.
Summary
It is evident that in order to terminate an employee on the basis of abandonment of employment an employer is required to take a positive step in order to end the employment relationship. Therefore, “it is the act of the employer that brings about the termination of the employee’s employment” (Bienias v Iplex, [49])
If you have any queries relating to abandonment of employment or employment law generally, please contact Michael Bishop or Amelita Hensman on (03) 9614 7707.
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