By John Salter
One day Mary doesn’t show up to work.
You don’t hear from her to say that she’s sick, has an injury, or giving any explanation for her absence, and it’s out of character for her to not show up. But then she doesn’t show up the next day, or the day after that, and repeated attempts to contact her go unanswered. It appears she’s gone AWOL.
So what as an employer should you do?
Whether it is formally in writing and signed or not, all employees in Australia have a legally binding contract with their employer which requires them to provide their skill, expertise, effort and productivity as directed. In exchange, their employer has an obligation to provide a safe work environment and to pay employees appropriately for their work.
Regardless of this, most employment relationships are based on an element of trust. The majority of employees will not vanish into the ether or go missing from work, without some sort of contact explaining or justifying their sudden vanishing act. But unfortunately, sometimes this does happen.
First consideration is for their welfare
In the rare event that a staff member simply doesn’t show up to work, the first consideration of an employer should be for their welfare – to find out whether they have met with injury or illness, or there is another reason such as domestic violence for why they haven’t turned up to work but don’t feel they can talk about it. This can usually be ascertained by a phone call, but employers need to ensure that they:
- Have all their staff members personal contact details on file, preferably with formal permission to use them- including email and social media details.
- Have emergency contact details recorded for every employee- next of kin etc.
- Ask staff to keep these up to date if and when they change, and create an automated annual request for them to confirm or alter their recorded contact details.
But what if you can’t get in touch with them, for days or even weeks at a time?
A case study from Iplex
Until recently, advice to employers about what to do in this situation, and what precautionary steps are needed to ensure they encounter no unpredictable future consequences have been based on a principle that if a staff member has been absent for a significant period of time and all reasonable attempts at contact had been made, then it was reasonable to assume the employee had no intention of returning and that they had abandoned employment.
However, recent decisions of the Fair Work Commission have thrown a good deal of uncertainty into this arena.
In early May 2016, a production team leader at Iplex Pipelines in Perth failed to report for work for fourteen consecutive days. He had previously been warned of the necessity to make contact with Iplex if and when unforeseen events prevented his attendance or punctuality at work. Given all Iplex’s attempts at contact failed, they formally terminated his employment from the end of May and paid him five weeks pay in lieu of notice. But what was intended as a generous gesture ultimately contributed to their grief.
After receiving his termination notice and pay in lieu, the employee lodged a claim for unfair dismissal. Iplex responded on the basis that it had not terminated him, rather he had terminated himself by abandoning his employment. FWC Senior Deputy President Matthew O’Çallaghan agreed, particularly as there was a clause in the relevant Award which actually stated that an absence of three consecutive days or shifts constituted abandonment of employment.
So to some commentators it was quite surprising when the worker appealed that decision, and a Full Bench of the Fair Work Commission came down on his side. The Bench found that the Award provision which deemed employment to be at an end after three days of unexplained absence was in conflict with the National Employment Standards and therefore of no force, and that it was the employer’s reaction to the no-show, rather than the employee’s actions, which constituted the termination of the employment.
How does this change your management of abandoned employment?
The effect of this controversial finding is potentially widespread. There has been a school of thought that employees are breaching their employment contract and therefore terminating their own employment if they cannot and will not fulfil their part of the employment bargain – that is, turn up for work and undertake their duties to the best of their ability as required by their employer.
But this latest decision appears to place a cloud over that principle as an inference can be drawn that the only way a worker can terminate employment is by a formal resignation – and unless and until that occurs, or the relevant employer formally terminates, continuity of employment is not broken and employers continue to bear some employment obligations. But if it is the employer who must formally terminate employment, what then is the obligation to provide notice or pay in lieu of notice?
Clearly, this creates the potential for unacceptable situations to emerge. In circumstances where someone is prima-facie AWOL, employers should act promptly but carefully and in cases where it becomes apparent that the absence is due to pressing personal need, with compassion. However, if all attempts at contact have proven futile, after approximately a week of ongoing absence the best course, given the current uncertainty of the legal position, is to seek expert advice as to the next steps.
It seems this decision will be the subject of further formal review within FWC, but it demonstrates why employers need to be cautious when they are unsure of appropriate employment related protocols to follow.
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