One Minute Summary

• The employer interpreted an employee’s unauthorised absence on personal leave as an abandonment of employment after the employee did not respond to an email to explain their absence which was sent over a weekend.
• The employer ignored the previous formal notification by the employee of their intended return date which the employee honoured.
• While the employer did not formally terminate the employee they refused to roster then or pay the employee. At this point the employer repudiated the employee’s employment contract.
• The employee lodging their application for unfair dismissal indicated an acceptance of the repudiation by the employer of the employment contract.
• The decision and commentary below provide useful principles for employers when asking the question as to whether an unauthorised absence could amount to abandonment of employment.
• Employers need to check the relevant Award and the employee’s employment contract whether they contain any clauses governing abandonment. Awards may also require employers to undertake specific actions in response to potential abandonment scenarios .

On 10 March 2025 the employee (Mr Poulter) notified his employer (JA Contracting) that he would be absent to attend a doctor’s appointment on Friday 14 March and at a family function on Monday 17 March. He stated he would be back at work on Tuesday 18 March.  In providing notification he followed the appropriate procedure. The evidence states this leave was approved in advance.

On Thursday 13 March the employee was rostered to work but was absent on personal leave without notice.

The employer followed up the employee by email on the Saturday asking him where he was on the Thursday. He also asked the employee whether he was planning on returning to for the week ahead. He finished the email stating ‘we will plan for you not being around next week. Please let us know where you are at.’

Mr Poulter replied to the message midday on Monday 17 March. He stated he was in a location where he was not able to receive messages over the weekend. He apologised for his absence the previous Thursday stating he was ‘crook in the guts’ and sleeping a lot on that day. He finished the message stating ‘I’ll be in tomorrow’.  His manager replied that leaving it to Monday to provide an explanation was not good enough.

When Mr Poulter checked his electronic roster later on the Monday, he found he had not been rostered for work on the following day – the Tuesday when he was supposed to return to work.

The manager replied stating that because he had not heard from the employee on the Saturday he had planned for him not to be available for the full week.

Mr Poulter was not rostered for work on the Tuesday or the remainder of that week. He sent the manager a copy of the message where he requested the Friday and Monday off (which had been approved) and that he was returning on the Tuesday.

On Friday 21 March Mr Poulter sent another message to the manager stating he had received advice that as a full-time permanent employee he could not simply be stood down without payment. He added that standing him down in such a manner was tantamount to dismissal and a fundamental breach of his employment contract. He then asked for payment for the days he had been available but had not been rostered to work.  He received no response from his manager to this message.

On Sunday 23 March Mr Poulter again checked his electronic roster and found that he had not been rostered for that following week as well. He sent his manager a message reiterating his apology for his unplanned day off, that he had followed the proper notifications for leave and had made it clear that he would be returning on the Tuesday 18 March.

The manager replied on the Monday afternoon 24 March. He stated that because he had an unexpected day off and had not replied to the managers email on the Saturday that they ‘didn’t know where you were and could not plan’. He then stated that ‘As far as we knew you had abandoned your position….. please let me know your intentions of returning’.

The manager then followed this up with a long message stating that he had not been rostered from the Tuesday 18 to the Friday 21 March because of his unplanned absence the Thursday the week prior, and because he had not responded to the email sent on the Saturday until the Monday 17 March.  He refuted the notion that Mr Poulter was stood down but stated it was ‘to ensure clarity around your availability and our operational planning’. He finished the letter with ‘Is your intention to return to your position?’

The manager then stated there had been a breakdown in communication adding that after Mr Poulter’s unexpected absence on the Thursday two weeks prior ‘we had no idea where you were. Please let us know your intentions at your earliest convenience. We have shifts available tomorrow onwards, please confirm’

The responses by the employee became increasingly frustrated including the fact he was nearly losing two weeks payment. In response to the last message from his employer be stated ‘I won’t be in tomorrow’.  

After a phone call with his manager Mr Poulter sent a follow-up text message where he again requested payment for the days he was available and should have been rostered to work.

The employer refused to pay Mr Poulter for any days after his absence on 17 March.

During the hearing the manager stated that he had not put Mr Poulter on the roster because he assumed that he had abandoned his employment due to his unauthorised absence and delayed communication.

In the hearing the applicant argued that that the employer does not have the right to stand down a full-time permanent employee without pay. In doing so the employer had repudiated the employment contract, and the employee accepted had the repudiation.

The employer made submissions that the applicant had not made it clear when and how a termination took place. Additionally, their submissions gave the impression it was unclear how Mr Poulter’s employment had ended and then led the matter into whether the applicant viewed the incident as a resignation in the form of a constructive dismissal. This was never part of the original application or argued by Mr Poulter.

The Commissioner rejected their approach and stated that there was no evidence that Mr Poulter had resigned nor did he stated he had been forced to resign.  

The Commissioner then took a systematic approach to determining the question of whether Mr Poulter had been ‘dismissed’ as defined under the Fair Work Act (2009).

In short dismissal occurs if the termination was at the initiative of the employer or if the employee resigned because of conduct engaged in by the employer.

The argument by the employer that ‘temporary, non-rostering does not itself repudiate the contract’ was rejected by the Commissioner.

In discussing repudiation of the contract the Commission stated ‘It is well established that the failure to provide work, where a contractual obligation to provide work exists, or the failure to pay wages …can amount to a repudiation of the contract of employment by the employer.’

In relation to whether an employee has abandoned their employment the Commissioner used the established test which states

‘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.’

The Commissioner goes on to state that the evidence does not support the argument that Mr Poulter abandoned his employment. He also states that the employee’s earlier notification to return to work on Tuesday 18 March and that a single day of sick leave without explanation  does not amount to a renunciation of the employment contract.

Mr Poulter’s contract of employment did not allow for him to be stood down nor did it allow for the failure to offer him work. A stand down may only take place under the specific provisions outlined in the Fair Work Act which did not occur in this case.

The Commissioner then concluded that the employer’s actions breached Mr Poulter’s employment contract in a manner that repudiated it. Mr Poulter filing his application for unfair dismissal was seen as an acceptance of the employer’s earlier repudiation of the employment contract.  

After the finding that the employee had been terminated at the initiative of the employer the matter was listed for further hearing as to the whether the termination was unfair.

Commentary

Abandonment of employment can at times be a difficult legal area for employers to deal with. The long term absence on personal leave can in rare circumstances be regarded as abandonment.

Despite an employee’s unauthorised absence employers have an obligation to attempt to make a genuine attempt to contact the ‘missing’ employee.  These obviously leads to questions of what is a genuine attempt.

Employees also carry responsibility to inform their employer of unauthorised absences which could be interpreted as abandonment. Since mobile phones became common it is harder for employees to argue they could not notify their employer. There are some circumstances where this argument will stand up such as the employee having been in an accident and in hospital or in a mental health crisis. Similar to this it is arguable that if a member of the employee’s immediate family is very sick it could be reasonable that they forget to call their employer.

Employers should check any relevant Award or Enterprise Agreement. They may have provisions which outline key triggers for abandonment of employment such as number of days of non-contact by the employee and specific employer obligations around attempting contact. These need to be followed.

Similarly, an employee’s contract may also have abandonment provisions. Such provisions need to be read in light of any Award provisions as they would prevail over the contract.

Employers have very limited rights to stand down employees without payment. The specific provisions where this can occur are outlined in the Fair Work Act.

Please contact Michael if you need assistance with Award or employment contracted related issues.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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