One fine Tuesday morning, during the busiest time of year for your business, Jeremy doesn’t show up for work.  He’s normally a little tardy, so no real concern. But now he’s thirty minutes late and it’s more than annoying… you’re getting concerned.

There’s been no phone call, email, or SMS to let you know he won’t be in. It’s time to pick up the phone and try contacting him… no answer.

You call his emergency contact. Still nothing.

Three days pass. No response. No explanation.

Now you’re left wondering… has something happened to him? It’s as if he’s just fallen off the face of the earth.

At the same time, you’ve got a business to run. There are client orders to deliver, and employees you rely on to either show up or communicate when they can’t.

So what are your options?

Abandonment of employment

Abandonment of employment is a form of termination of employment initiated by the employee. It occurs when an employee fails to attend work for an extended period without notice or a reasonable explanation. 

Before you clear out Jeremy’s desk and move on, there are a number of steps you must take to ensure you’re not exposing your business to an unfair dismissal claim.

Step 1: Make Every Effort to Contact the Employee

We cannot stress this enough - you must make a reasonable effort to contact the employee. Try calling, emailing, text messaging. No response? Attempt to contact their emergency contacts. This is an absolute must. If you don’t make reasonable effort to contact an employee who seems to have gone missing in action, and you terminate their employment, you are opening yourself up to the prospect of an unfair dismissal claim. 

There may be a very real reason for the absence. Illness, accident, or something serious that prevents them from contacting you.

Step 2: Determine the Employee’s Intent

You make contact - now what? You need to determine whether or not there is a valid reason for the unexplained absence. If not, you will need to advise them of the implications of their continued unauthorised absence. And those consequences are simple, it will be considered abandonment of employment. In most cases, if they have not returned within a specified period of time, you can move to terminate them.

We recommend you follow up with a written communication with a registered letter that provides proof of receipt. Demonstrating contact was made and the opportunity to respond was provided.

Determining intent is important. Any claims that go before a court or a industrial tribunal focus on this in order to resolve the case.

For example:
If Jeremy was hospitalised and physically unable to contact you, then there was no intention to abandon employment.

If you terminate in that situation, you’re likely heading straight into an unfair dismissal claim.

Intent is everything.

Step 3: Put It in Writing

If you can’t make contact despite every effort being made, best practice is to outline the situation in a letter. Confirm they have been absent and the amount of time they have not attended work. Ask them to provide an explanation. Advise that you will assume they have abandoned their employment if they do not respond within a specified timeframe.  

You must deliver this in a manner that provides confirmation of receipt so registered post may be the best option.  An email may also suffice, but only where you have the ability to track email delivery and read receipts. If you know they've received your correspondence and still haven't responded in the designated time, you can proceed with termination. 

Boguslaw Bienias v Iplex Pipelines Australia Pty Ltd [2017] resulted in the determination that the termination of an employee does not simply occur because the employer has deemed them to have abandoned their employment. An employer, after following due process in terms of contacting and communicating the employee, can deem an employee to have abandoned their employment but they must then follow up by specifically actioning the termination as well. That is, they must follow a process to finalise the employment with the paperwork that would occur with any other type of employee termination. 

What about Jeremy?

Remember, while you’re concerned about Jeremy, you also have a business to run. Balancing both is crucial. Given you have made reasonable efforts to contact Jeremy, move on to sending a registered letter. Outline the situation and the consequences.  Set a timeframe for response. If he doesn’t get back to you and you are absolutely sure he is in receipt of your letter, then go ahead and commence the termination on the basis of abandonment. 

If there's no response to this communication within 7 days, it's fair to consider they've abandoned their employment.

Key considerations

HR Staff n’ Stuff recommends having clear and practical policies around annual leave approval, personal leave processes and absenteeism.

Your employees have entitlements, including personal leave when required, but they also have an obligation to contact you. They need to communicate their situation and their expected return so you can manage workflow and productivity. It’s a two-way street.

Be aware that a number of Modern Awards address abandonment of employment. Ensure you understand and comply with any Award or industrial instrument relevant to your business before taking action to terminate.

Always take notes and record the dates and times of your attempts to contact an employee who is absent without explanation. You must be able to demonstrate that you made reasonable efforts to make contact. Use all available methods — phone, mobile, text, email and even social media if needed. Record these efforts so you can back yourself up if an unfair dismissal or general protections claim comes your way.

Allow a reasonable timeframe before moving down the path of abandonment of employment. If an employee misses one shift, it’s not reasonable to assume abandonment — it could simply be a misunderstanding or miscommunication around a roster.

However, if they miss multiple shifts and you’ve made repeated attempts to contact them with no response, you may have grounds to consider abandonment. Always exhaust every avenue to make contact and rule out approved leave with another manager.

You need to protect your business.

This can all seem quite onerous on the employer, but the more effort to follow reasonable steps, the more you're protecting your business. While the outlines above may seem lengthy, in reality this could all occur in a week or two.

If you are in any way unsure of your rights as an employer to terminate an employee who has not shown up for work, please call us at HR Staff n’ Stuff as we are here to help.

FAQs About Abandonment of Employment Australia

How many days absence is considered abandonment of employment?
There is no strict rule, but generally 7 days without contact may be considered abandonment depending on circumstances.

Can you terminate an employee for not showing up to work?
Not immediately. Employers must first attempt contact and follow a fair process before termination.

What if the employee has a valid reason?
If there is a reasonable explanation, it is not abandonment and termination could lead to an unfair dismissal claim.