Unfair dismissal; abandoning employment

When will an employee be regarded as having abandoned his or her employment? Here is an extract from a recent Fair Work Commission case which deals with some of the legal principles.

“In assessing whether there was an abandonment of employment, consideration is had to the factual matrix in terms of the context of events. 121 Whether or not an employee abandoned her, or his employment, is a finding of fact.122

It could be said that an abandonment of employment occurs where the employee simply walks off the job, or fails to return from a period of authorised leave, in such a way that the employer is reasonably entitled to conclude that the employee no longer intends to be bound by their contract. 123 The finding of abandonment turns on whether the employee intended to repudiate the contract of employment by failing to perform in accordance with its terms, and whether that intention on the employee’s part was at his or her own initiative, or else was it consequential of the conduct of the employer (and without which the employee might have continued to perform the terms of the contract).124”

Cole v Roy Hill Station Pty Ltd (2019) FWC 5358 delivered 30 August 2019 per Beaumont DP