Abandonment Of Employment Principles

Abandonment of employment can be a complex issue in unfair dismissal cases, often requiring careful legal interpretation. Recent considerations by the Full Bench of the Commission shed light on this matter, particularly in the context of how abandonment is determined and its implications under the Fair Work Act 2009 (FW Act). Understanding these principles is crucial for both employers and employees navigating disputes over employment termination. Below, we examine key passages from the recent case of Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006, which clarify the application of these legal concepts.

[44] Issues associated with abandonment of employment were recently considered as part of the 4 yearly review of modern awards. The Full Bench of the Commission considered the meaning of the expression “abandonment of employment,” and to its relevance in the context of an unfair dismissal application. The Full Bench stated as follows (references omitted):

“Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. 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. Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

Where this occurs, it may have various consequences in terms of the application of provisions of the FW Act. To give three examples, first, because the employer has not terminated the employee’s employment, the NES requirement in s 117 for the provision of notice by the employer, or payment in lieu of notice, will not be applicable. Second, if a modern Award or enterprise agreement provision made pursuant to s 118 requiring an employee to give notice of the termination of his or her employment applies, a question may arise about compliance with such a provision. Third, if the employee lodges an unfair dismissal application, then the application is liable to be struck out on the ground that there was no termination of the employment relationship at the initiative of the employer and thus no dismissal within the meaning of s 386(1)(a) (unless there is some distinguishing factual circumstance in the matter or the employee can argue that there was a forced resignation under s 386(1)(b)).”