In a recent decision the Fair Work Commission has rejected a wellness and body shaping business’s defence that an employee abandoned her employment by failing to attend a single shift.
The Facts
On 6 April 2025 the employee messaged her employer that she could not make it to the shift the next morning.
On 7 April 2025 the employer emailed the employee notifying a warning for her absence that day and directed her to not return to work until she attended a disciplinary meeting.
The employee and employer then exchanged various emails in which the employee stated her intention to attend a meeting, and the employer proposed some times, but a meeting was not held. On 21 May 2025 the employer notified termination of employment.
The employee applied to the Fair Work Commission alleging a breach of general protections involving dismissal.
The employer raised a jurisdictional objection that the Applicant was not dismissed by the employer because she had abandoned her employment on 7 April 2025.
The Decision
The Deputy President found that the employee did not abandon her employment and was dismissed by her employer, where:
- Even though she did not have authority to refuse the shift on 7 April 2025, she had texted her employer the day before to say she would not attend.
- Since 7th April 2025 there were emails between the employer and employer to arrange a disciplinary meeting date, and if anything, the employer had failed to respond to the employee on numerous occasions.
- Abandonment of employment requires the employee to evince an objective intention that they no longer wish to be bound by the employment contract, and the evidence does not reach that threshold.
Implications
The case is a reminder to employers to exercise caution before deciding to treat employment absence as abandonment of employment, which has a specific legal meaning and does not apply in many situations.
Employees should also be aware that even if unauthorised absence without a proper reason may not amount to an abandonment of employment, they may still be subject to performance management by their employer, depending on the circumstances.
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