- Noella Silby, Lawyer, MDC Legal
We’ve all had that sinking feeling at the end of a period of annual leave: the realisation of the impending need to return to work becomes all too apparent, and you think, “I might just extend this holiday for 6 months to a year“. Or, maybe you are a new mum or dad, nearing the end of parental leave, and you consider staying in that new-born bubble for so long as it lasts. Maybe you’ve just woken up one morning and decided to not show up for work that day (or the next day, or the next). What also accompanies these thoughts is that you would simply return to work when you feel like it because, of course, your job is always going to be held open for you; you wouldn’t need to tell the boss what you’re doing, and you certainly wouldn’t need to return their pesky calls asking of your whereabouts.
These scenarios are commonly known as “abandonment of employment”, and they happen frequently (see Mad Men’s Don Draper as an apt example). Employers often think that they can dismiss an employee simply because the employee has failed to attend work for no reason known to the employer. Practically, however, it may be difficult to establish that an employee has actually abandoned their employment. This is because an extra step is required: the employer must firstly make genuine attempts to contact the absent employee and understand the reasons for the absence. Once the employer is apprised of the information about the employee’s absence, it will be difficult for the employer to establish abandonment. They’ll need to think carefully about termination due to risks of exposure to unfair dismissal and general protections claims.
The Fair Work Act 2009 does not expressly deal with abandonment of employment. Some modern awards do; however, they effectively operate as automatic dismissal provisions and reinforce the notion that an employee (covered by the award) who has been absent for an extended period—either without consent from their employer or they fail to return after a period of authorised leave—and without notification of a reason for the absence, has therefore abandoned their employment. The clauses do not provide for the extra step, as identified in recent case law.
In Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd t/a Iplex Pipelines Australia  FWCFB 38 (Iplex Pipelines), a team leader failed to show up to work for a fortnight, following a series of unauthorised absences from various shifts. During his absence, Iplex attempted to contact the employee by phone, in writing, and even arranged for the police to conduct a welfare check on him. The employee did not respond to any of Iplex’s attempts at contact. The company set these facts out in a letter to the employee and, when he did not respond, determined that he had abandoned his employment. So they terminated him on that basis.
The Full Bench of the Fair Work Commission (FWC) in Iplex Pipelines determined that the abandonment clause in the applicable award did not operate as an automatic dismissal provision. Rather, the employer must take the “positive step of concluding that it is not satisfied that the employee was absent for reasonable cause“,before it can rely on an abandonment clause in an award.
The Full Bench also found that if this clause was treated as effecting an automatic termination of employment, then it is not a term permitted or required in a modern award pursuant to s.137 of the Fair Work Act, and is therefore of no effect. As a result of this decision, the FWC announced that it will review abandonment clauses in all modern awards.
So, if you’re an employer dealing with your own Don Draper, you’ll need to take the extra step of satisfying yourself that the employee was not absent for reasonable cause, before the deeming provision in an award can operate, and before ending the employment relationship.
AWOL employees should not get complacent: although it’s the employer that must act positively, employees will need to satisfy the employer that they are absent for a reasonable cause, otherwise they risk their employment being terminated.
About Noella Silby:
Noella is a Lawyer at MDC Legal. Noella has completed a BA (Italian) at University of Western Australia and an LLB at the University of Notre Dame. Noella is proficient in conversational Italian and French. Noella has completed clerkships at Williams & Hughes and John Toohey Chambers. From 2014, Noella volunteered at the Employment Law Centre of WA, where she was a coordinator of the Social Impact Research project and assisted solicitors with the Centre’s Evening Legal Service until April 2015. During her time at MDC Legal, Noella has assisted employer and employee clients on unfair dismissal and general protections claims and their contractual and statutory entitlements and obligations. Noella has acted as an instructing solicitor in proceedings in the Federal Circuit Court of Australia, and has assisted clients with proceedings in the Federal Court of Australia, the Western Australian Industrial Relations Commission, and the Fair Work Commission. Noella has been elected to the Law Society Council of WA as a Junior Member for 2017.