Not turning up for work for a few days without advising the employer does not always mean that an employee has abandoned work. There are two possible issues:
- the employee has abandoned employment and the employer does not know where the employee is
- the employee fully intends to return to work, but has taken unauthorised leave.
There is a different process for each case.
Abandonment is where an employee walks away from their job with no intention of returning. For example, they may clear their desk, say things in the heat of the moment and slam the door as they go. Other times they may simply not turn up.
Some employment agreements have a clause which states that the employee's employment may be terminated after a specific number of days of unauthorised absence (usually 3 to 5 days). It is good practice for all employment agreements to contain a clause on abandonment. Employment agreements may also provide for forfeiture of wages if an employee abandons their employment and does not give the required amount of notice in the agreement.
When an employee leaves in a dramatic fashion it’s important to try to fully understand what they really want to do, so everyone knows where they stand. If the drama is work-related they may not have meant to resign and just need some time to cool off before meeting to discuss.
Responding to abandonment of employment
Both employees and employers should communicate clearly with each other in abandonment situations.
When an employee has just not turned up, you, as the employer, must make a big effort to contact them. There’s no legal number of days before they’re considered to have abandoned their job, but it’s usually three days or more. Don’t be too hasty to start the process to end employment — sometimes employees have reasonable explanations.
Before you can fire them, you need to have tried to find them and clarified whether they plan to come back to work. This means calling all contact numbers several times, leaving messages to call back, perhaps visiting their home before sending a letter or email telling the absent employee that you’re considering ending their job.
If you contact your employee, and they have a good reason for their absence and intend to return to work, then you can’t rely on abandonment to dismiss them.
Before you decide that the employee has abandoned their job, it’s important to listen to the employee with an open mind and consider any other information you may have about the absence, such as medical certificates, or conversations with family members of the employee.
If an employee is not able to get into work and cannot let you know, they should make sure someone tells you on their behalf.
Dismissing an employee for abandonment
If a number of days have passed and you still haven’t been able to contact the employee and they haven’t had any contact with you, follow these steps:
- Advise the employee by phone or email and in writing to their last known address that their employment is at risk. Make it very clear that unless they contact you by a certain time you’ll regard their employment as ended due to abandonment. Quote the relevant clause from their employment agreement if there is one.
- If there is still no response, advise the employee by phone or email and in writing that, in accordance with your previous communication, you now regard their employment as terminated by reason of abandonment.
It is very important that you keep a record of all attempted contact and communication so that, if should there be a dispute in the future, you have it all documented. If it’s a matter of taking unauthorised leave it should be handled in the same way as any other suspected misconduct.
Remember, if you’re going to end an employment relationship, you must have a good reason and act fairly and reasonably.
In Buck v Tinsley’s Mower & Chainsaw Professionals (2001), there was a heated argument between Buck and his employer about the cost of a repair. After this argument, Buck believed he had been sent away permanently. However, his employer considered that it was Buck’s responsibility to contact them.
The Employment Relations Authority held that the company was in breach of its duty to inquire fully into the circumstances of Buck’s withdrawal from the workplace. The breach was sufficient to constitute dismissal, either actual or constructive. The company was ordered to pay Buck lost remuneration and compensation.