Employees abandoning their employment

As a team, we have noticed an influx of employee abandonment scenarios for our clients.  The below article explores the concept of abandonment and the process that should be followed.

Abandoning employment

Abandonment is a situation where an employee is absent from the workplace for a specified period without consent or notification and they have no intention to return to work.  Most employment agreements contain an abandonment provision which references an absence of between 3 to 5 consecutive working days.  It’s important to note that abandonment doesn’t equate to dismissal by the employer; instead, employment concludes through the operation of the abandonment clause.

Duty to make inquiries

During the period of unexplained absence, employers must continue to act in good faith. This includes making reasonable inquiries about the employee’s whereabouts. This might include phoning, texting, emailing, or delivering a letter to their address.  In some cases, it may be appropriate to contact the employee’s emergency contact.  This is not a situation where an employer can sit quietly and let the prescribed timeframe pass.

In Murray v South Pacific Meats Limited[1], the employer tried to call the employee’s landline number despite being aware that she was out of the country.  After not hearing from her, the employer deemed she had abandoned her employment and did not offer her any further work. The Employment Relations Authority determined this level of inquiry was inadequate and it was unreasonable for the employer to conclude she had abandoned her employment.

Considering the situation and context

In light of the unique nature of each abandonment situation, the specific circumstances must be considered before determining whether it is appropriate to pursue an abandonment pathway.

In McMurdo v Davie Norris Boatbuilders Limited[2], an employee left a voicemail for his employer in the aftermath of the Christchurch Earthquakes.  The voicemail stated the employee was not going to be at work as he was helping his son relocate.  The employer did not receive the voicemail and stated the employee had abandoned his employment.  In such a crisis situation, it was deemed unreasonable to assume abandonment.

Process

Handling abandonment situations requires a fair and thorough process.  At a minimum, the process must involve employers attempting to seek feedback from the employee concerning their absence and the possibility of abandonment. Simply assuming abandonment without giving the employee an opportunity to explain their conduct or absence can be deemed an unjustified dismissal.

The specific wording of the abandonment clause in the employment agreement may also play a crucial part. Some clauses contain additional requirements, such as determining whether the unauthorised absence was “without good cause”.  This will have an impact on the process to be followed.

[1] Murray v South Pacific Meats Ltd [2016] NZERA Christchurch 59

[2] McMurdo v Davie Norris Boatbuildings Ltd [2012] NZERA Christchurch 5

Want to know more?

If you have any questions about the case or the topics discussed in this article, please contact our specialist Employment Team.

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