Abandonment of employment; fair work cases

These passages from an unfair dismissal case deal with the legal principles about abandonment of employment.

“[44] Issues associated with abandonment of employment were recently considered as part of

the 4 yearly review of modern awards. The Full Bench of the Commission considered the

meaning of the expression “abandonment of employment,” and to its relevance in the context

of an unfair dismissal application. The Full Bench stated as follows (references omitted):

“Abandonment of employment” is an expression sometimes used to describe a situation

where an employee ceases to attend his or her place of employment without proper

excuse or explanation and thereby evinces an unwillingness or inability to substantially

perform his or her obligations under the employment contract. This may be termed a

renunciation of the employment contract. The test is whether the employee’s conduct is

such as to convey to a reasonable person in the situation of the employer a renunciation

of the employment contract as a whole or the employee’s fundamental obligations under

  1. Renunciation is a species of repudiation which entitles the employer to terminate the

employment contract. Although it is the action of the employer in that situation which

terminates the employment contract, the employment relationship is ended by the

employee’s renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of

provisions of the FW Act. To give three examples, first, because the employer has not

terminated the employee’s employment, the NES requirement in s 117 for the provision

of notice by the employer, or payment in lieu of notice, will not be applicable. Second,

if a modern Award or enterprise agreement provision made pursuant to s 118 requiring

an employee to give notice of the termination of his or her employment applies, a

question may arise about compliance with such a provision. Third, if the employee

lodges an unfair dismissal application, then the application is liable to be struck out on

the ground that there was no termination of the employment relationship at the initiative

[2023] FWC 1006

20

of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is

some distinguishing factual circumstance in the matter or the employee can argue that

there was a forced resignation under s 386(1)(b)).”

(Emphasis added)

[45] I cannot conclude that a reasonable person would have formed the view that the

Applicant had abandoned her employment. Between 6 September 19 October 2022, the

Applicant had been in contact with the Respondent. Any brief delays in the correspondence did

not convey abandonment as the Applicant issued multiple response letters to the Respondent.

[46] On 6 September 2022, the Applicant, responding to the 31 August Letter, advised the

Respondent:

“Once again I want to continue with my employment with Safety Assembly Moulding

Pty Ltd”

[47] The Respondent’s requests for updates thereafter were simply that, requests for updates.

They did not seek any further explanation as to what the Respondent perceived to be

abandonment.

[48] The termination of the employment relationship did occur at the initiative of the

employer, and there was a dismissal within the meaning of s 386(1)(a).”

 

Hinic v Safety Assembly Moulding Pty Ltd – [2023] FWC 1006 – 2 June 2023 – Cross DP