An employee was held to have abandoned his employment by not showing up for work. The employee was sick on the Thursday he was required for work. His next day of work was the following Tuesday, and he sent a text message to say he would not be in.   The employer then phoned him for an explanation, which was not given. Instead the employee swore at the employer.

Following this, the employee failed to return to work. The ERA found he never meant to return to work.

Subsequently, the employee raised a personal grievance for unjustified dismissal.   This was successfully defended.

The employee’s evidence was that he was told over the phone that he was dismissed, and then he swore at the employer.  The ERA questioned this, and found the employer’s version of events more credible: that the employer had asked what was happening and why the employee was not at work, and the employee had sworn at the employer until she ended the call by saying they would leave things at that.

The ERA did not decide whether or not the employee was “dismissed”, but confirmed that the employee had abandoned his employment.

While the employer may be criticised for not calling the employee again, she told the ERA this was because of the abuse she had received over the phone. This was accepted by the ERA in the circumstances of this particular case.

On balance, the ERA held that the employee had intended to abandon his position and so a dismissal would have been  justified on the ground of abandonment.

Abandonment occurs when an employee fails to show up for work for an extended period (generally three days plus) and fails to notify you, or give you a good reason for not being at work.

Your employment agreements should contain a clause on abandonment of employment.  This clarifies how many days of absence without reason or notification will be considered abandonment.

If an employee is failing to attend for work, a reasonable employer should try to find out where the employee is, and whether they intend to return to work, before considering the employee has abandoned employment (even if the employment agreement contains an abandonment clause).

Contacting the employee also helps clarify things if the employee genuinely is mistaken about the need to be at work.  For example, they may have mistakenly considered they had applied for leave.

As a practical step, contact your employee as soon as they fail to show up to work.  Call them on any contact number you have.  If you cannot reach them, leave a message for them to call you back.  You should also make a note of your attempt to contact the employee.  It is best to attempt to contact them a reasonable number of times and not only once, and keep a record of each and every attempt.

If you manage to get in touch, ask them why they are not at work.  Listen to any explanation with an open mind, and seek advice if you are not sure whether their excuse is valid or reasonable.  You may need to request further information from your employee such as medical certificates or information from other people.

In this case the ERA preferred the employer’s evidence that she had opened the call by asking where the employee was. This was significant to the finding that the employee had abandoned his employment.

If a number of days pass without contact, we recommend that you let your employee know that their employment is in jeopardy if they do not contact you by a certain time.  It is best to do this in writing, as well as over the phone or through email.  Quote the relevant clause of their employment agreement.

If you do not hear from them by the deadline, advise in writing that you now regard their employment has ended by reason of abandonment.

Keep a record of the employment agreement, attempts to contact the employee, and letters sent to the employee.  This will help you defend against any potential claim for unjustified dismissal as it will show you have acted fairly and reasonably and had a good reason to end the employment.  It is also important that you pay out any accrued leave or entitlements.