A recent decision on a jurisdictional objection by the Fair Work Commission (“FWC”) has provided further guidance on what constitutes an abandonment of employment by an employee. The decision demonstrates the importance of communication with employees, particularly where employees have carer responsibilities.

Background

The Applicant was employed on a part-time basis by a trailer parts and accessories manufacturer based in South Australia. The Applicant had significant carer’s responsibilities in caring for his 11-year-old son who had attention deficit hyperactivity disorder (ADHD), particularly during the school holiday period. In addition, the Applicant had suffered a compensable work injury and had been diagnosed with depression and anxiety, of which the Applicant contended the employer had been made aware.

The Applicant had been absent from work prior to 16 December 2020, and did not attend work from 17 December 2020 to 12 February 2021, which included a period in which the employer was closed for the holiday period. The employer contended that the Applicant was unreliable and would often not communicate about his inability to attend work. However, throughout the month of December, the Applicant had sent messages explaining his absences. During January and February, the Applicant did not provide any further communication, but the employer had made a decision not to contact him. Upon returning to work on 12 February 2021 the Applicant was informed he had been terminated by way of abandonment of employment.

Outcome

The employer raised a jurisdictional objection to the Applicant’s general protections application, arguing that the Applicant had abandoned his employment and therefore was not dismissed from his employment.

The FWC considered the case of Shamrock Consultancy Pty Ltd v Norma Ah San [2020] FWC 5364, which set out the applicable test when considering whether there has been an abandonment of employment. The Full Bench of the FWC in that case set out the following objective test:

“… whether the employee’s conduct is such to convey to a reasonable person in the position of the employer and based on the facts reasonably known to the employer at the time, that the employee has repudiated their duty to meet their obligations under the contract of employment.”

In this case, the FWC highlighted the fact that the Applicant had not exhausted his personal leave entitlements. Since the employer was aware of the Applicant’s mental health condition and his carer responsibilities during the school holidays, the FWC deemed that a reasonable person in the position of the employer would have enquired as to the status of the Applicant.

As a result, the FWC held that the employer was not in a position to reasonably conclude that there had been an abandonment of employment by the Applicant, and consequently the employer had effectively dismissed the employee. The jurisdictional objection was rejected, with the matter to be listed for a further conciliation.

Key takeaways

• The test to determine abandonment of employment is whether a reasonable person in the position of the employer could reasonably conclude, based on facts reasonably known to them at the time, that the employee had repudiated their duty to meet their obligations under their employment contract
• Unexplained or lengthy absences will not automatically give rise to a right to terminate due to abandonment of employment.
• Employers should not assume that someone has abandoned their employment in circumstances where they have not taken steps to enquire about an employee’s status, particularly if that employee has carer responsibilities.

A copy of the decision can be found here.

People + Culture Strategies