Many Employers make the mistake of thinking an Employee has abandoned their job simply because they did not turn up for a rostered shift, and then wrongly assume they can enforce their right to dismiss. Employers need to establish whether the Employee has any intention of returning to work and make every effort to contact the Employee. The recent case of Rush v JSB Construction Ltd demonstrates how an Employer can get it very wrong.
Rush, a machine operator, was found by the Employment Relations Authority to have been unjustifiably dismissed when his boss wrongly thought he had abandoned his job after taking three days of unauthorised leave. Rush requested three days annual leave between Easter Monday and Anzac Day, but his request was denied. The Employer said there was too much work on during that period and no Employees were able to take leave. After discussions, the Employer compromised and said that, if Rush worked the previous three Sundays, he would be allowed the leave. Rush thought this was an unreasonable condition and so, did not work the three Sundays previous, but continued to be absent for the annual leave period. After his three day absence his Employer left a voicemail on his phone to inform him that he had abandoned his position and his employment had been terminated.
The Employment Relations Authority decided that Rush had been unjustifiably dismissed because the Employer knew Rush planned to be away for those days and then intended on returning to work. Whilst the Employer "may have considered that Mr. Rush had taken annual leave without authorisation, which may have given him grounds to embark upon a disciplinary investigation, I consider that it was unreasonable in the circumstances for him to conclude Mr. Rush intended to abandon his employment." Rush was awarded three months’ lost wages and holiday pay, $15,000 in compensation and legal costs. The compensation sum was however later reduced by 30 per cent in consideration of Rush’s decision to take annual leave despite not working the condition Sundays.
As this case demonstrates, if an Employee intends on coming back to work, any unexplained/unapproved absence should be treated as a disciplinary matter, not abandonment, and an investigation should be immediately commenced on their return. The investigation should give the Employee an opportunity to explain their absence before any conclusion is drawn.
Before treating the position as being abandoned, the Employer must make every effort to locate the Employee and to ascertain the status of the employment relationship or whether the Employee intends on returning. Employers will need to try to:
- Phone the Employee;
- Phone friends/relatives of the Employee;
- Write to the Employee and preferably have the letter hand delivered by management or couriered or alternatively sent by registered post letters; and
- Email the Employee.
Employers will need to prove that they made every reasonable effort to communicate with their Employee during the abandonment period.