Employment lawyer provides insights, tips for HR on how to handle issue – and avoid claims of constructive dismissal
Earlier this month, the Fair Work Commission handled a case where a worker argued unfair dismissal after he was allegedly away from work because of his vaccination status.
The Commission sided with the employer, determining that the worker had abandoned his employment, rather than having his employment terminated. It noted that: there was no evidence of an authorised absence, whether paid or unpaid leave; no contact from the worker for over a year; and no evidence that the employee had attempted to work.
But what exactly is an ‘abandonment of employment’ and how can it be determined?
Defining abandonment of employment
An abandonment of employment is a very old legal concept, says Andrew Douglas, managing principal at FCW Lawyers.
“It's built around what's called repudiation,” he told HRD Australia. “That's where an employee, through their actions or omissions, demonstrates an intention to no longer be bound by their employment contract. And you see it arising in a number of circumstances: The most common one is that people go on leave overseas, and they never come back. They've abandoned their employment.”
Other common situations where an abandonment occurs is in police matters, when an employee may be locked up; and for people with medical illnesses where they are unable to communicate because of the nature of their illness, Douglas said.
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