Question
We require clarification on an issue we are experiencing with an employee.
The individual has not called or reported to work yesterday or today. Their usual workdays are Tuesday, Wednesday & Thursday.
Can you advise how long it must be before they have “abandoned” their place of employment?
Can you advise if we still must pay them for a “notice” period of two weeks if they do not return?
Do we still issue a letter of termination?
Answer
Abandonment of employment is a complicated and risky area, and employers should not lightly conclude that it has happened, especially if there is any indication the employee intends to return.
Employers should, at a minimum, try to make contact with the employee. If an employer can reasonably assume an employee has abandoned their employment, there are a number of steps it can take. Which steps are appropriate will depend on the circumstances?
The employer has an obligation to try and contact the employee via telephone on a couple of occasions, then try the next of kin, failing any of that they should report the matter to police as a welfare check if they cannot get in touch with the employee or and relevant next of kin. Also, they need to send a registered letter to the employees last known address at about the same time they call the police.
There is no set period of time that an employer must wait before they can assume an employee has abandoned their employment.
Clauses in modern awards previously required a period of at least three days’ unexplained absence before there was prima facie evidence an employee had abandoned their employment. There is no longer any abandonment of employment clauses in the modern awards, as the Fair Work Commission considered they were not necessary to meet the modern awards objective.
Once a reasonable period of time has passed and an employer can reasonably assume the employee is not coming back, there are a number of options available to an employer.
Which option is appropriate will depend on the relevant employment instruments and the facts of the matter?
If there is no reply from the phone calls or reply from the letter it is only then that they can assume the person has terminated their employment due to abandonment and they pay the employee all outstanding entitlements up until the last day worked and the relevant notice period (casuals excluded from notice period).
Whilst the process seems a little arduous anything less may be seen as an unfair dismissal.