There are a number of steps employers should take when determining whether an employee has abandoned their job, according to experts in our Employment Law team.
This is because abandonment is not always clear-cut – even if an employee walks off the job, doesn’t return from leave, or fails to show up at work for an extended period of time.
Top tips for employers include avoiding assumptions, not rushing the process and making reasonable efforts to contact the employee in question.
The abandonment clause
Employment agreements often include an “abandonment” clause, which effectively states that if an employee is absent from work for an extended period without explanation, they may be considered to have abandoned their employment.
The essential criterion is that the employer must have good grounds to believe the employee intended to have left their employment for good.[1] This means employers cannot simply assume employees had abandoned their role if they miss work for a few days. Efforts must be made to contact them.
Reasonable efforts to contact employee
When an employee does not show up for work, the employer is obligated to reach out and try to contact them to determine whether they plan to come back.
Employment New Zealand has some suggestions for contact, that we have built on below:
- call all contact numbers for the employee several times, leaving voice messages asking the employee to call back;
- send a text message on each mobile contact number and an email to each email address on file, asking the employee to get back in contact ASAP and noting that employment will be treated as abandoned if they do not do so by the end of [x] date; and
- in the absence of mobile or email addresses on file, arrange a courier to get a letter to the same effect to the employee’s last known address .
Employment agreements generally specify the number of consecutive shifts that will amount to abandonment. Provided this is 2 or more days, it should suffice. However, if an employee has left due to some highly emotional event or a medical emergency, they are unlikely to provide an explanation immediately and it may be appropriate to wait longer before considering whether they have abandoned their employment.
In Spotswood v Concrete Structures (NZ) Ltd, the Employment Relations Authority considered that a single phone call to the employee was insufficient – reasonable steps could have included communication by email and/or by post or urgent courier.[2]
Records of all attempted contact and communications should be kept, in the event the employee later disputes the termination of their employment. The bottom line is that an employer must act fairly and reasonably and must not preemptively decide that an employee has abandoned their employment.[3]
If the employee has not responded to the initial letter by the requested timeframe, an employer should advise them by phone, email and in writing that their employment is now considered terminated by reason of abandonment.
What if an employee takes unauthorised leave?
If the employee returns to work after an unexplained period of absence, this is not abandonment of employment. Rather, this is a case of unauthorised leave, which should be handled in the same way as any other suspected misconduct.[4]
If you would like guidance with your own employment agreements or company policies, the Employment Law team at Lane Neave is always more than happy to help.
Author: Stella Smith
[1] Surplus Brokers Ltd v Armstrong [2020] NZEmpC 131 at [17].
[2] Spotswood v Concrete Structures (NZ) Ltd [2024] NZERA 9 at [35].
[3] HR Best Practice Discipline and Dismissal at 9.8 Abandonment.
[4] Loh v Pauanui Publishing Ltd [2002] 1 ERNZ 64 (CA) at [16].
