Unfair dismissal; the doctrine of abandoning employment

The doctrine of abandonment of employment is a tricky legal issue in employment law. The doctrine most commonly arises for legal attention in unfair dismissal involving a dispute about whether an employee abandoned his or her employment, or whether it weas terminated by the employer. Here the issue is at large for determination in the context of a dispute about the date of the alleged dismissal and the relevant time limit.

“In a Full Bench decision in the matter of Bienias v Ipex Pipelines [2017] FWCFB 38 the Full Bench concluded as follows:

“[43] Thus termination of employment by abandonment as set out in the third paragraph of clause 21, though said to operate as from the date, relevantly, of the last attendance at work, cannot operate at all until the employer reached the conclusion that it is not satisfied that the employee was absent for reasonable cause, and decides to act. Therefore, it is not the unauthorised absence of the employee which causes the employment to terminate, nor is it the deeming of the unauthorised absence to be an abandonment. Rather, it is the act of the employer that brings about the termination of the employee’s employment.”

Te Riini v Cambio Group Financial Planning T/A Cambio Group (2020)  FWC 3475 delivered 2 July 2020 per Simpson C