Has Your Employee Disappeared? What Constitutes Abandonment of Employment
It is a reality that in many instances, employees may act in a manner which is indicative that the employment relationship has ended but have not taken steps to formally resign. Their absence from the workplace and lack of communication with their employer can lead to the inference that their “employment has been abandoned”.
In such situations, the employer must determine that the employee has been absent or ceases attending the workplace without the employer’s authorisation and without reasonable justification or explanation, and as a result, has demonstrated an unwillingness to perform their role. On this basis, the employee may be deemed to have abandoned his or her employment and effectively ended the employment agreement, in which case the employment will terminate immediately.
However, every case will be determined by its merits. On this basis, the question is often asked: what amounts to abandonment of employment?
This was considered by the Fair Work Commission (FWC) in a recent case: Debora Tavares Alves v The Trustee for T.C. Future Investment Unit Trust [2025] FWC 2045.
What happened in this case?
Ms Alves was employed by the Respondent, CNA Accountants as an Office Manager. She was absent from work from 9 November 2024 following a significant medical issue. In the days that followed (11 and 18 November), the only contact the employer had, was with the Ms Alves’ daughter. The communication left the employer uncertain whether Ms Alves would return to work, and they were unaware of the severity of her condition.
The employer then attempted contact with Ms Alves via email and post on 16 December 2024, raising the issue that she may have abandoned her employment and requesting a response within 2 weeks. No response was received.
The employer then sent a letter on 15 January 2025 notifying Ms Alves that “she had abandoned her employment” and that she had a notice period of five weeks. This was followed up by an email on 19 February 2025, which also provided her with a separation certificate.
Ms Alves then filed a claim related to unfair dismissal, asserting that the employer terminated her employment due to a “temporary absence from work for her physical and mental disability”.
Although the claim was filed 21 days late, the Fair Work Commission allowed an extension because of the exceptional circumstances surrounding her medical condition.
Determining Whether Employment was Abandoned
The employer relied on a four-part test that had been used in two previous cases: Ally Hyde-Nawell v Children’s Rights Australia Limited [2024] FWC 30 as well as Orry Thompson v Zadlea Pty Ltd trading as Atlas Steel [2019] FWC 1687.
The test to determine abandonment of employment is as follows:
An unexplained or unauthorised absence from the workplace
A reasonable period of time where the employee has been absent without explanation or authorisation
Whether there was any communication from the employee during the absence, or whether any communication clearly showed an intention to not return to work
Whether the employer made any enquiries during the period of absence
In this case, the employer argued all four of these points had been met. The Fair Work Commission applied an objective test and agreed, dismissing the claim.
In particular, the employer was never informed of the full extent of Ms Alves’ medical episode, and she never took any steps to notify them. It was this lack of communication about her condition that led the employer to conclude that Ms Alves had abandoned her employment.
Key take aways
This case shows that employers must always be proactive and cautious and must not simply assume that abandonment has occurred. Every reasonable effort to communicate with the employee should be made.
Need guidance on managing complex employee absences or suspected abandonment of employment? Our experienced employment team is here to help. Contact us today to ensure your processes are fair, compliant, and legally sound.
