Abandonment of Employment: Silence Is Not a Resignation

For many years, employers have used the phrase “abandonment of employment” where an employee simply stops attending work and fails to respond to calls, emails or messages.

That may still be a useful way to describe the conduct, but recent Fair Work Commission decisions are a strong reminder that employers need to be very careful before treating silence as a resignation.

The problem is simple. If an employee does not attend work and does not explain why, the employer may understandably believe the employee has walked away from the job. However, the Commission may still find that the employment ended because the employer made the final decision to terminate it.

That distinction matters.

Distinguishing Between Employees and Employers Ending Employment

If the employee has ended the employment relationship, there is no dismissal. If the employer has ended the employment, there is a dismissal, and the employee may then be able to bring an unfair dismissal or general protections claim.

A recent Commission decision involving dnata Airport Services is a good example. The employee stopped attending work and did not respond to attempts to contact him. The employer sent a letter saying it believed he had abandoned his employment and that, unless he responded, it would assume he had voluntarily resigned.

The Commission found that the wording of the letter was important. Phrases such as “we will assume you have resigned” and “your employment will be terminated accordingly” pointed to the employer being the party making the decision to end the employment.

In another recent matter involving Redcape Hotel Group, a casual employee told one venue he would not return, but at the same time asked for more shifts at another venue operated by the same employer. The Commission found that he had not clearly resigned from the employment relationship as a whole. He wanted the relationship to continue, just under different arrangements.

Learnings From Recent Cases

The practical lesson for employers is this: do not jump too quickly to the conclusion that an employee has abandoned their employment and ended the employment relationship.

A resignation should be clear and unambiguous. If the employee says, “I resign”, that is one thing. If the employee says, “I am not coming back to this site”, “cancel my shifts”, or simply stops responding, that is not always enough.

This does not mean employees can just disappear without consequence. They cannot.

Employees are still required to attend work as rostered, follow lawful and reasonable directions, notify the employer if they are absent, and provide evidence for leave where required. Silence is not an answer. Failing to attend work or failing to communicate can still constitute an abandonment of employment or justify disciplinary action, and in appropriate cases, termination.

However, the process and wording matter.

What to Check Before Ending Employment

Before ending the employment when you consider the employee has abandoned their employment, employers should:

1. check the employee’s current leave position;
2. check whether there is any workers compensation, illness, injury, family issue, or other known reason for the absence;
3. make reasonable attempts to contact the employee by phone, email and text;
4. keep records of attempts to contact employees by way of “read/received” functionality on an e-mail
5. clearly direct the employee to make contact by a set deadline;
6. ask the employee to explain the absence and confirm whether they intend to return to work;
7. warn that failure to respond may result in disciplinary action, up to and including termination of employment; and
8. avoid saying the employer will “assume” the employee has resigned unless the resignation is clear.

Employers should also be cautious about relying too heavily on the phrase “abandonment of employment”. In many cases, the cleaner and safer approach is to deal with the matter as unauthorised absence, failure to follow a lawful and reasonable direction, and failure to maintain reasonable communication with the employer.

Where appropriate, an employer may also need to consider whether the employee’s conduct amounts to a repudiation of the employment contract. However, repudiation is a serious legal finding and should not be treated as automatic. It depends on the facts, the employee’s conduct, and whether a reasonable person would understand that the employee no longer intended to be bound by the employment relationship.

If an employee goes missing, take a breath, check the facts, contact them properly, give them a clear opportunity to respond, and then make a decision based on the evidence.

For MTA NSW members, the safest course is to seek advice before sending abandonment letters or closing off employment. A poorly worded letter can turn what looks like a simple non-attendance issue into a dismissal dispute.