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Full Bench Abandons Award Automatic Termination Clause

Submitted on Friday, 17th February 2017

A Full Bench of the Fair Work Commission has confirmed the ‘Abandonment of employment’ clause contained in the Manufacturing and Associated Industries and Occupations Award 2010 (“Manufacturing Award”) does not result in an automatic termination of an employee.

The employee was engaged for just over 33 years as a Team Leader in a quality assurance environment. After failing to attend shifts on a number of occasions, he was repeatedly advised he was required to call his direct supervisor in the case of future absences.  

Sometime later, an unrelated performance meeting was held with the employee, after which the employee did not attend work for a scheduled follow-up and failed to notify the employer of his absence. After a period of 17 days without contact despite repeated attempts, the employer sent a letter advising the employee had effectively abandoned their employment and was considered terminated.

The employee subsequently made an unfair dismissal claim with the Fair Work Commission. In the initial objection hearing, the employer attempted to rely on the abandonment of employment clause contained in the Manufacturing Award which states:

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.

The first instance decision had upheld the employer’s objection that the dismissal was not “at the initiative” of the employer because of its reliance on the above abandonment clause.

On appeal, the Full Bench considered the context of the above clause, and determined that the clause, if read as effecting an automatic termination of employment in specified circumstances, is not a term that is either permitted or required in a modern award, and would therefore have no effect. As such, they allowed the appeal, quashed the jurisdictional objection and remitted the unfair dismissal application to another Member to determine.

The Fair Work Commission will now review the status of Abandonment of Employment clauses contained in five additional modern awards as part of the 4 yearly review. These awards are:

  • The Business Equipment Award 2010;
  •  The Contract Cal Centres Award 2010;
  • The Graphic Arts, Printing and Publishing Award 2010;
  • The Manufacturing and Associated Industries and Occupations Award 2010;
  • The Nursery Award 2010; and
  • The Wool Storage, Sampling and Testing Award 2010.

Employers are advised to seek advice and tread carefully if relying on an award ‘abandonment of employment’ clause, and to consider procedural fairness if effecting a dismissal on these grounds. For information about your obligations to employees and dismissal processes, contact the WPR Helpline on (03) 8662 5222. 

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