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When an employee is absent from work for an extended period of time and does not have an explanation for this, this may mean that they have abandoned their employment. You should make a good faith effort to try and contact the employee. Here, you should clarify whether they intend to come back to work. If they do not respond or have an explanation, it is possible to dismiss them. This article will explain:

  • what ‘abandonment of employment’ is;
  • how it relates to unexplained absences; 
  • what to do when an employee is absent without explanation; and 
  • how to dismiss an employee who has abandoned their job.

What Is Abandonment Of Employment?

Abandonment of employment is:

  • when the employee does not turn up to work for multiple days in a row;
  • has not given any reason or explanation for their absence; and 
  • where it is genuinely unknown whether they intend to come back. Or, if they say they do not intend to come back.

Not every unexplained absence will amount to abandonment of employment, or mean that the employee can be dismissed.

For example, the employee fully intends to return to work, but takes some days off. Here, they may have taken unauthorised leave rather than abandoned their job. This can be treated as possible misconduct instead.

However, say an employee clears their desk, declares that they are not coming back, and leaves the office without coming back for days. This may be abandonment as the employee does not seem to have an intention to return to work.

What To Do When An Employee Is Absent Without An Explanation

You have a good faith duty to your employee. This applies even when they are absent from work and have not given a reason or explanation. When an employee does not turn up to work, you must make a significant effort to try and contact them. While there is no firm or required number of days before the employee is considered to have abandoned their job, the time period would typically be longer than three days. 

For employees who are absent, you should:

  • call all contact numbers for them several times; 
  • leave messages to call you back; and
  • eventually, send an email telling the absent employee that you are considering terminating their employment as they have abandoned their job.

If you succeed in getting in contact with your employee and they have a good reason or explanation for their absence and intend to return to work, you cannot rely on abandonment to dismiss them.

How To Dismiss An Employee Who Is Absent Without A Reason

In some scenarios, you may have little choice but to follow a process to dismiss an employee who has abandoned their employment. Remember that you should already have tried to contact them several times, and warned them that their job is at risk. You should give them a final deadline to contact you. Afterwards, you will have to regard them as having abandoned their employment.

You should also cite an abandonment clause if the employee’s agreement has one. This is a clause which states that the employee’s employment may be terminated after a specific number of days of unauthorised absence (usually three to five days). It is best practice for all employment agreements to contain a clause on abandonment, and this increases flexibility for your business.

It is important that you keep a record of all attempted contact and communication so that, if there is a dispute in the future, you have it all documented. After the final deadline has passed, you should send a final confirmation letter. This will state that you have terminated the employee’s employment as they have abandoned their job.

Key Takeaways

It is legal in New Zealand in some circumstances to dismiss an employee for an unexplained absence. However, this unexplained absence must amount to the employee abandoning their employment – not all unexplained absences will be abandonment. If an employee eventually gives a reasonable explanation or comes back to work, this may be a misconduct issue but they usually cannot be dismissed on the grounds of abandonment. It is important to remember your good faith duty and make repeated efforts to get in touch with employees who are away from work without explanation. If you want to know more about abandonment of employment or dismissing an employee for unexplained absences, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is abandoning employment?

Abandonment is when an employee does not turn up to work for an extended period of time without a reason or explanation for their absence and does not intend on coming back. 

What should an employer do if an employee is absent for days without an explanation?

The employer should try and get in touch with the employee in whatever way possible, including calling them, leaving messages, and emailing. They should, after at least three days of no contact, warn the employee that their job might be at risk by abandoning their employment.

Can an employer dismiss an employee for an unexplained absence?

Yes, in scenarios where the employee is absent without contact or explanation for an extended period of time and has no intention to return.

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