Abandonment: resignation or termination by the employer?

One Minute Summary

Following an incident at work the employee was told to go home on 9 December 2025.
He did not turn up for his next rostered shifts and the employer was unable to reach him.
The employer sent a letter on 22 December requesting the employee respond within 5 days. The employee claimed not to have seen the letter until 5 January 2026.
Given the wording of the letter the Commission found that the termination had been at the initiative of the employer - and not a voluntary resignation.
With the jurisdiction determined (not a resignation but a termination) the employee could proceed with their General Protections claim.

Mr Haque commenced employment with dnata Airport Services in March 2025. In August 2025 he was separated from working with several other employees after he raised concerns about their conduct. On 8 December 2025 he confidentially raised concerns with how these employees were treating a female staff member. On 9 December, after those employees complained about rumours that Mr Haque had complained about their behaviour towards the female staff member, the Manager, Mr Kilner, sent Mr Haque home.

Mr Haque did not attend work for his next rostered shift and did not respond to attempts to contact him by phone or email.

On 22 December he was sent a letter by the HR Business Partner via email. The letter stated that dnata would assume he had voluntarily resigned if he did not explain his absence within 5 working days.

Mr Haque claims he did not see his email until 5 January 2026 – which was after the 5 day working period which expired on 31 December 2025.

Mr Haque filed a General Protections dismissal application under s365 of the Fair Work Act. This case deals with the initial question of whether Mr Haque resigned or was he terminated by dnata.

In response dnata argued Mr Haque’s employment ended at his initiative because he abandoned his employment ‘which constituted a renunciation of his employment obligations’ (Renunciation of his employment obligations refers to the contract of employment that exists between dnata and Mr Haque. So we have a cross over between Fair Work legislation and contract law.)

In a bit of a rambling decision the Commissioner initially examines some of the case law examining what it means for a termination to be ‘at the employer’s initiative’ where there is no clear employer termination.

The first example refers to the employer initiating a termination by simply accepting a heat of the moment resignation rather than clarifying with the employee when they had calmed down that they genuinely intended to resign.

The second refers to a constructive dismissal where a resignation takes place by the employer’s conduct.

The Commissioner then refers to a 2018 A Full Bench examination of how abandonment of employment could be considered a termination by the employee.

‘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.’

This still means the employer terminates the contract – but it was following the actions of the employee to renunciate their employment obligations (i.e. turn up for work!).

In applying the case law to Mr Haque and dnata the Commission initially states that even though he is aggrieved by his perceived unjust treatment on 9 December 2025 Mr Haque should have informed dnata about whether he was planning to come back to work.

The Commissioner stated: “I consider the better view is that the employment ends at the initiative of the employer because the employer dismisses the employee for failing to attend work without explanation. In most cases, the employer will be reasonably well placed to explain why the dismissal was not unfair and was not in breach of the general protections by reference to the conduct of the employee.”

Looking at the facts of this particular case the Commissioner notes:

That after Mr Haque was sent home on 10 December the next steps were not clear. The evidence suggested Mr Kilner would investigate the matter and update Mr Haque.
Mr Haque did not turn up for work and was unable to be contacted by dnata.
Mr Haque did not view the emailed letter until 5 January.
‘I consider the conduct of Mr Haque would have conveyed to a reasonable person that a substantial dispute had arisen between Mr Haque and dnata about his employment and that the dispute was some way from being resolved.’

In examining the wording of the letter emailed to Mr Haque the Commissioner finds dnata was the party making the decision to end the employment relationship.

‘Unless we receive written communication from you within five (5) business days of the date of this letter, explaining the reason for your absence and confirming your intention to return to work, dnata will assume you have voluntarily resigned from your position. In this circumstance, your employment will be terminated accordingly.’

The Commissioner then concludes that it was dnata that terminated Mr Haque’s employment. This decision quashes dnata’s position that Mr Haque had resigned allowing General Protection proceedings to take place against dnata.

In strange twist the last paragraph of the decision encourages Mrs Haque to attend a conciliation conference with realistic expectations given his short employment duration and “because he repeatedly failed to communicate with dnata from 9 December 2025”.

Commentary

If this matter is not settled at conciliation dnata could lodge an appeal to a Full Bench and I suspect this decision would not survive an appeal.

What could the employer have done better?

While it was not clear from the decision it is likely an investigation was taking place behind the scenes starting somewhere after 10 December. dnata should have interviewed Mr Haque shortly thereafter and kept him informed.

The wording of the letter ‘dnata will assume you have voluntarily resigned from your position. In this circumstance, your employment will be terminated accordingly.’ presents a problem for dnata.

If the above had stopped at ‘voluntarily resigned from your position’ the outcome may have been different. The last line ‘will be terminated’ contradicts the voluntary aspect of his resignation.

Abandonment is a dicey area that cuts across Fair Work legislation and contract law. It is imperative that the employer make reasonable attempts to contact the employee through whatever communication contact options they have including the old fashioned posted letter.

In a world of instant communication with mobile phones (including receiving emails on your phone) I find it very hard to accept that an employee was uncontactable from 9 December until 5 January.

If you wish to discuss how to manage a potential abandonment situation please give me a call.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au