Even where a termination occurs because the employee has been absent without any advice or notification, it is the employer’s action of wrapping up the relationship that actually creates the termination – and that means the employee can still claim unfair dismissal. 

In what has to be one of the more perverse outcomes of the system, an employee who simply disappeared from work has been given the go ahead to claim unfair dismissal. This is despite the relevant award providing for an abandonment of employment protocol (albeit one which this case now says is invalid), and the employer’s multiple efforts to find the employee (including notifying the police). 

The employee was unwell during the period his whereabouts remained unknown to the employer, but the evidence revealed that he nevertheless had ample opportunity to inform his employer of the situation. Instead, as he admitted under oath, he “just didn’t care” that he hadn’t done so. Initially, the Fair Work Commission accepted that the employer effectively acted within its rights to take the abandonment of employment route. But on appeal, a full bench said that it was still the employer’s action that triggered the end of the employment. Hence the termination was “at the initiative of the employer”. 

So when an employee disappears without explanation or the courtesy of responding to an employer’s efforts to find out what is happening, if the employer terminates the relationship on the grounds of abandonment of employment, an unfair dismissal claim can still be made. Logic suggests the employee’s action actually brought the relationship to an end by failing to be ready, willing and available to do the job they were hired to do. But that is not how the appeal bench saw it. 

Employers need to carefully word any correspondence sent to employees in this situation. And think carefully about making an termination payments to the employee, because, like in this case, that can be used by the Fair Work Commission against the employer as evidence of the employer terminating the employment.  

There are strategies to minimise the risks of blow back in these cases but they depend on the particular circumstances. As a general rule though, if an employee disappears, some attempt needs to be made to find them and if that fails, the employee should be advised in writing that the employer has assumed the employee has resigned without notice. In that correspondence, reference should be made to any contractual (or EBA etc.) obligation the employee has to give notice.

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