Here at FixHR we often receive calls from frustrated employers wanting to terminate staff for abandoning their employment. However, after a short discussion, it often turns out that abandonment of employment is not the case at all. Particularly during these summer months, things that we as business owners would definitely classify as abandonment (%@#*!) wouldn’t stand up to that definition if actions to dismiss were ever scrutinised. So let’s dive in and get this right.
What is Abandonment of Employment?
Abandonment of employment is a very specific situation where an employee is absent without permission for a certain period, seemingly with no intention of returning, and being non-communicative. This is important. If you have heard from them or if they have told you they are going on unauthorised leave, it is probably not technically “abandonment”. You probably know this, but terminating employment can lead to a successful personal grievance – successful for your staff member, not for you. Abandonment is not defined in statute and is assessed based on the facts of each case, including whether the employee’s conduct objectively demonstrates an intention not to return to work.
Unauthorised Absence vs. Abandonment
In many cases, unauthorised absence is usually the issue and that needs to be treated very differently to sacking someone for abandonment. Unauthorised absence is a misconduct issue. If an employer knows where an employee is or has had any communication from them, abandonment of employment cannot be used. In those circumstances, the matter should be managed as a potential misconduct process rather than treated as automatic termination.
Legal Considerations
There is no legal statute defining a minimum time before abandonment is applicable. It comes down to what is written (and agreed to) in the Employment Agreement, and in the absence of that, what could be considered fair and reasonable. Most often, we see three days as a minimum period considered acceptable. Less than three days is likely to be considered unreasonable by the Court; more than three days would be considered generous. However, there is no automatic rule that employment ends after a set number of days. Even where an employment agreement refers to abandonment after a stated period, the employer must still act in a manner that is fair and reasonable in all the circumstances.
Employer’s Responsibilities
The onus is definitely on the employer to make all reasonable efforts to contact the employee to establish their whereabouts and intentions if or when they have not turned up for work. There are many reasons someone may not have gotten to work, all of which – if they were to have really occurred – would elicit your support, not your frustration. So you need to be able to evidence that all avenues of contact have been exhausted before you start to consider termination. We strongly recommend that all contact attempts be documented so the employer can clearly prove a paper trail of evidence if the termination is challenged. Employers should provide the employee with a reasonable opportunity to explain their absence before concluding that abandonment has occurred.
Importance of Correct Processes
Unsurprisingly, dismissal and discipline processes are the most contended issues in terms of employers receiving personal grievances. The justification for disciplinary action is not usually the problem; the Courts largely dwell on process, and employee advocates know this.
In New Zealand, the Employment Relations Act 2000 requires employers to follow fair and reasonable procedures when dealing with disciplinary matters. This means that even if there is a valid reason for disciplinary action ie abandonment can be proved, failing to follow the correct process can still result in a successful personal grievance claim against the employer. The test applied by the Employment Relations Authority and the Employment Court is whether the employer’s actions were what a fair and reasonable employer could have done in all the circumstances at the time.
So briefly, a fair process typically includes conducting a thorough investigation, trying to provide the employee with a chance to respond to the allegations, and considering their explanations before making any decisions. Of course this process normally results in the staff member’s return to work which feels very self-defeating to the employer in this situation. Our sympathies are with you! Employers must also ensure that the employee is aware of the potential consequences of their actions and that they have the opportunity to seek support or representation during the process. Again, this feels designed to thwart a good employer, but if this process is not followed, a case against the employer would succeed.
Documentation is crucial. Keeping detailed records of all steps taken, including meetings, communications, screen shots of text messages (or lack thereof) and decisions, can provide evidence that the employer acted fairly and reasonably. This documentation can be vital if the matter is taken to the Employment Relations Authority or the Employment Court.
Frustrating – we KNOW!
By adhering to these processes, you can minimise the risk of personal grievances and maintain a fair and respectful workplace. If you need guidance on navigating these complex processes, our team at FixHR is here to support you every step of the way. Reach out to us for expert advice tailored to your specific needs.
