Abandonment v Termination – A lesson for employers

Employers often rely on an employee’s abandonment of employment as the reason for terminating an employee if absent without explanation. However, a recent case provides some guidance to employers as to when termination will be characterised as termination rather than abandonment.

Recent caselaw:

In the recent case of Abdullah Haque v dnata Airport Services Pty Ltd the employer objected to the unfair dismissal application brought by the employee and argued that the employee had effectively abandoned their role after failing to attend work and not responding adequately to communications. The termination resulted from the unexplained absence of the employee following complaints raised against him, and failing to respond to attempts to contact him by email and telephone.  The employer was of the opinion that the employee abandoned its employment and consequently the employment relationship was terminated.

The tribunal did not agree that the termination resulted from abandonment of employment, but was characterized as a termination by the employer for the following reasons:

1. A substantial dispute existed between the employer and employee, and it is not unreasonable for the employee to be confused about what steps he should take next;
2. The employer failed to follow a process to sufficiently inquire into the whereabouts or circumstances of the employee;
3. The employer failed to follow a reasonable disciplinary process or obtain any evidence against the employee.
4. The wording of the email directed to the employee was the determining factor, it stated that:
   1. The employer considers the absence to be unauthorised;
   2. The employer will assume the employee had voluntarily resigned if he failed to respond by a certain date; and
   3. If the employee failed to respond his employment will be terminated accordingly.

It as determined that the wording of the correspondence to the employee did not allow for a response

Key takeaways for employers:

This case serves as a strong reminder that employers must follow a fair and reasonable process even when they consider an employee has abandoned its employment.  Where an employer prematurely concludes that an employee has abandoned their employment without sufficient inquiry, process and evidence it risks being found to have terminated the employee.

If you need guidance about workplace concerns or employee management please contact the Workplace Relations Team on:

📞 (02) 6175 5900
📧 workplace@mba.org.au