Abandonment of Employment

Abandonment of employment concerns typically arise when an employee fails to attend work for an unreasonable period without providing a valid excuse or communicating with their employer. It is essential to acknowledge that there may be genuine circumstances preventing an employee from making contact. In such cases, it is advisable for employers who suspect abandonment to seek independent legal advice from Bentham Sydney Employment Lawyers. This ensures that any actions taken are legally sound and appropriately handled in accordance with Australian employment law.

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Abandonment Of Employment Principles

Abandonment of employment can be a complex issue in unfair dismissal cases, often requiring careful legal interpretation. Recent considerations by the Full Bench of the Commission shed light on this matter, particularly in the context of how abandonment is determined and its implications under the Fair Work Act 2009 (FW Act). Understanding these principles is crucial for both employers and employees navigating disputes over employment termination. Below, we examine key passages from the recent case of Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006, which clarify the application of these legal concepts.

[44] Issues associated with abandonment of employment were recently considered as part of the 4 yearly review of modern awards. The Full Bench of the Commission considered the meaning of the expression “abandonment of employment,” and to its relevance in the context of an unfair dismissal application. The Full Bench stated as follows (references omitted):

“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern Award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”

In the realm of unfair dismissal cases, the Fair Work Commission typically supports an employer’s decision if a valid reason for termination is established. This principle is exemplified in the case of Green v Citic Pacific Mining Management Pty Ltd [2022] FWC 2455, where the Commission examined the criteria for determining whether a dismissal was justified. Here, we explore the legal standards applied to assess the validity of dismissal reasons and how these principles were applied in this specific case.

Defining a Valid Reason for Dismissal

According to established legal principles, a "valid reason" for dismissal is generally defined as one that is "sound, defensible, or well-founded," and not "capricious, fanciful, spiteful, or prejudiced." This definition requires that the reason for dismissal be assessed within the practical context of the employer-employee relationship, considering each party’s rights and obligations. The Commission does not substitute its judgment for that of the employer but evaluates whether the reason for dismissal was related to the employee’s conduct or capacity, including its impact on workplace safety and welfare.

Evidentiary Requirements and Objective Analysis

For a reason to be deemed valid, it must be defensible based on an objective analysis of the relevant facts. Employers must establish, on the balance of probabilities, that the conduct justifying dismissal occurred, especially in cases related to employee conduct. The employer bears the burden of proving the conduct on which the dismissal is based. Notably, facts existing at the time of termination but not known to the employer may still be considered if they support the validity of the dismissal reason.

Case Analysis: Green v Citic Pacific Mining Management Pty Ltd [2022] FWC 2455

In the Green v Citic Pacific Mining Management Pty Ltd [2022] FWC 2455 case, the employer cited "abandonment of employment" as the reason for Mr. Green's dismissal. The company’s policy defined abandonment as being absent for three consecutive working days without authorization. Mr. Green’s failure to return to work as scheduled and his lack of communication were central to the employer's justification for dismissal.

The Commission’s analysis revealed that Mr. Green’s absence during two rostered periods was not authorised, as he failed to apply for or obtain approval for leave. Despite some communication with the employer, Mr. Green did not comply with explicit instructions to regularize his absence or provide a definitive return date. The employer’s directions regarding leave and attendance were deemed lawful and reasonable, and Mr Green’s repeated failure to meet these obligations constituted a valid reason for dismissal.