Rethinking “Abandonment of Employment”

Employers often cite “abandonment of employment” as a practical response when an employee stops showing up for work. If an employee stops attending work and cannot be contacted, it is easy to conclude they have walked away from the role; but it is important to take stock of the situation.

The recent Fair Work Commission (FWC) decision of Haque v dnata Airport Services Pty Ltd [2026] FWC 1698 demonstrates the risks in treating non-attendance as abandonment.

Employers should ask themselves: has the employee brought the employment relationship to an end? In many cases where employers allege abandonment, the answer is that, in fact ,it was the employer.

What abandonment actually means [1]

“Abandonment of employment” is a term used to describe a situation where an employee stops attending work without explanation, suggesting they are no longer willing or able to perform their role. This may amount to a renunciation of the employment contract. The question is whether the employee’s conduct would lead a reasonable employer to conclude that the employee no longer intends to be bound by the contract, or to fulfil its core obligations.

Renunciation is a form of repudiation, which gives the employer the right to terminate the contract. While the employer formally brings the employment to an end in these circumstances, the underlying cause of the termination is the employee’s conduct indicating they have walked away from their obligations.

However,absence alone, even over a period of time, does not automatically meet that standard.

An employee’s absence following workplace conflict, uncertainty about instructions, or a breakdown in communication may cast doubt on whether there has been a renunciation, even where the employee has stopped communicating with their employer.

In Haque, the employee was sent home after two employees complained about rumours that had allegedly been circulated by the employee about their conduct. This occurred during a shift that the employee had picked up outside of his usual roster. The FWC found it was not clear what was expected of him when he left. He then failed to attend his rostered shifts and could not be contacted despite several attempts by the employer to reach him by phone and email. In that context, the FWC found his conduct was not sufficient to establish repudiation.

Who actually ended the employment?

Whether an employee has been “dismissed” is a threshold question under s 386 of the Fair Work Act 2009 (Cth). A person is dismissed if their employment was terminated on the employer’s initiative. An employer resisting an unfair dismissal claim on abandonment grounds is in effect arguing that the employment ended on the employee’s initiative, which places the applicant outside the statutory definition of dismissal. That argument can succeed, but it requires the facts to genuinely support an abandonment, not merely an absence from work.

The FWC’s focus is on what was actually said and done by the employer and employee to bring about the end of the employment relationship.

The turning point in Haque was the employer’s own conduct. The employer described the situation as abandonment and gave the employee an opportunity to respond. However, the employer then identified the absence as unauthorised, foreshadowed termination and ultimately dismissed the employee. The FWC found that the employment ended because of the employer’s decision to terminate, not because the employee abandoned his employment.

How formalising abandonment can backfire

Employers face a practical tension: doing nothing when an employee stops work attending carries its own risks, but moving through a formal termination process can simultaneously undermine an argument that the employee has abandoned their role.

When employers try to formalise abandonment through a documented process, it can begin to resemble a dismissal. Where the situation is treated as a dismissal, the analysis shifts to more standard questions: whether there was a valid reason and whether the process was fair, or whether a prohibited reason formed part of the decision.

And there may be a valid reason. Where an employee has failed to attend work without explanation and has not responded to attempts to make contact, the underlying conduct may provide a proper basis for termination in both unfair dismissal and general protections contexts. This is distinct, however, from abandonment.

A better way to manage unauthorised absence

Usually, if an employee fails to attend work and ceases communication with the employer, the employer will seek to confirm the employment relationship has come to an end.

Rather than characterising absence as “abandonment”, employers ought to focus on what the employee actually did or failed to do. 

If the employer decides to end the employment because the employee has not attended work and/or has provided no explanation, it is usually better to proceed to make a decision based on that conduct and following due process.

This approach, which was endorsed by the FWC Haque, allows for proactive management of an absent employee, avoids the need to establish repudiation and means the employer’s reasoning is also more transparent and defensible.

Abandonment is often perceived as a convenient shortcut. In reality, however, it introduces complexity and risk that a straightforward termination process avoids.

When an employee stops attending work without explanation, consider managing the conduct proactively and if in doubt, seek legal advice.