Fair work cases; abandonment of employment

There is a concept in employment law called “abandonment of employment” which deals with the circumstances in which an employer may defend a dismissal case on the basis that the employee was not dismissed but abandoned his or her employment. Here is an example.

“Abandonment of employment

[47] The principles regarding abandonment are well established and were considered by the Full Bench in 4 Yearly Review of Modern Awards – Abandonment of Employment [2018] FWCFB 139 (Abandonment of Employment). The Full Bench considered clauses in several awards that related to employment abandonment by an employee. The clauses discussed at paragraphs [23] to [27] are substantially similar to those in the PBS Agreement.

[48] Clause 21 of the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), considered in Abandonment of Employment, provided as follows:

“21. Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21— Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.”

[49] Clause 18 of the PBS Agreement provides as follows:

“18. Abandonment of employment

  1. The absence of an Employee from work for a continuous period exceeding three (3) working days, without the consent of the employer, or without notification to the employer in accordance with sub-clause (c), shall be prima facie evidence the employee has abandoned their employment.
  2. If within a period of 14 days from the employee’s last attendance at work, or the date of the employee’s last absence in respect of which notification has been given, or consent has been granted, the employee has not established to the satisfaction of the employer that the employee was absent for reasonable cause, the employee shall be deemed to have abandoned their employment.
  3. Termination of employment by abandonment, in accordance with this clause, shall operate from the date of the last attendance at work, or the last day’s absence in respect of which notification was given to the employer, whichever is the later.”

[50] In relation to the Manufacturing Award provisions 21.1 and 21.2, the Full Bench said that “neither provision operates to automatically terminate the employment.” 15 In relation to clause 21.3, they said, “[c]lause 21.3 would effect a modification to the common law principle that a termination of employment cannot take effect unless it is first communicated to the employee…”.16

[51] In applying the Full Bench decision, 17 Mr Penhalluriack cannot rely on clause 18 of the PBS Agreement to contend that Ms Blyth abandoned her employment and that she was not dismissed. Of assistance in this matter is the consideration of the concept of abandonment of employment within the context of an unfair dismissal application.

[52] In addition to the consideration of the award provisions, the Full Bench considered the meaning of abandonment of employment:

“[21] “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 it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.5 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.6”

[53] The Full Bench’s discussion regarding possible consequences of the termination of the employment relationship by the employee, included “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 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)).” 18

[54] Ms Blyth submits that she did not abandon her employment and was merely taking leave. She says that on or around 13 March 2021, she had messaged Ms Lamb that she “needed to take some time off as she was unwell.” 19

[55] Ms Blyth submits that it is not possible for her as a casual worker to either fail to attend shifts for which she was not rostered or for shifts that she had no knowledge had been allocated to her.”

Extract from Blyth v Francis William Penhalluriack (2022) FWC 972 delivered 3 May 2022 per Mirabella C