Fair Work Commission Clarifies ‘Abandonment of Employment’ in Landmark Ruling

The Fair Work Commission (FWC) has provided a crucial determination on what constitutes “abandonment of employment” in the recent case of Alves v T.C Investment Unit Trust (2025). The ruling offers significant clarity for employers on managing employee absences and highlights the legal risks of misinterpreting a lack of communication.

Abandonment of employment occurs when an employee is absent from the workplace without a reasonable excuse or explanation, leading a reasonable employer to conclude that the employee no longer wishes to be employed. If an employer incorrectly treats an absence as abandonment, it can be deemed a termination of employment at the employer’s initiative, potentially exposing the business to a claim of unfair dismissal or a general protections claim. The FWC considers three primary factors in such cases:

1. What the employer knew

2. Steps the employer took to investigate

3. Steps the employee took to inform the employer.

In the Alves case, an employee from an accounting firm was absent from work, initially providing a text message citing a migraine and later a medical certificate covering a one-week absence for a medical condition, including stress and mental health issues. Following that week, there was no communication from the employee for an entire month. The employer made several attempts to ascertain her medical status and likely return date, including a formal letter giving her 14 days to respond. When no communication was received, the employer concluded the employee had abandoned her role and formally ended her employment.

The employee subsequently lodged a general protections application, alleging she was dismissed due to her disability. However, the employer submitted a jurisdictional objection, arguing that it had not dismissed the employee; rather, the employee had abandoned her employment.

The FWC ultimately ruled in favour of the employer. It determined that in the absence of any detailed explanation of the employee’s medical conditions or a timeline for her return, the employer was entitled to conclude that the employee had repudiated her employment contract. The FWC’s ruling emphasised that while the employee may have been incapable of communicating, this fact was never relayed to the employer, making it irrelevant to the employer’s reasonable belief.

This case serves as a powerful reminder for all employers that the concept of abandonment is judged from the perspective of the employer. The onus is on the employee to maintain communication, even during periods of illness. The decision underscores the necessity for employers to have robust procedures for managing absences and to document all attempts to contact absent employees.