Think your Employee has Abandoned?
Abandonment of employment is a situation where an employee fails to show up for work without notifying their employer for an extended period, and is presumed to have resigned or just ditched their employment. However, it’s not as straightforward as it sounds, and it’s much rarer than people think.
What the Employment Agreement Says Matters
Most employment agreements in New Zealand contain a clause about abandonment, typically stating that if an employee is absent without contact for a set number of days (commonly three), this may be considered abandonment of employment. However, even if the clause exists, that doesn’t mean an employer can immediately terminate the employee after three days of no-shows. Frustrating, we know!
The threshold for legally establishing abandonment is high. If your employee has made any form of contact, even a brief message or a third-party update (e.g., from a family member), it is unlikely to meet the test for abandonment. In these cases, you may be dealing with something else:
- A disciplinary issue
- A misuse of leave situation
- A wellness or personal crisis
None of these automatically qualify as abandonment and should be handled through the appropriate processes.
Your Duty of Care as an Employer
Before assuming abandonment, remember that as an employer you have a duty of care. This includes:
- Making reasonable attempts to contact your employee through phone, email, or emergency contacts
- Considering whether there may be a legitimate reason for their absence (e.g., illness, accident, mental health)
- Documenting your efforts to get in touch
There is Still a Process
If, after a reasonable period, your employee still hasn’t made contact and you have exhausted your efforts to reach them, you should advise them in writing that you are considering they have abandoned their employment.
Give them a clear timeframe to respond and clarify their intentions to return to work.
Only after that period has passed with no response, and you have followed a fair process, can you confirm that the employee has abandoned their employment. Any termination must still be done in accordance with the terms of their employment agreement.
This article does not substitute advice specific to your situation. If you need any advice regarding your employee, please reach out. We are happy to help!