Abandonment of Employment – A Quick Guide for N.Z Employers
Abandonment of employment can occur when an employee stops attending work without explanation or authorisation and fails to respond to contact attempts by their employer to clarify their whereabouts.
Employers must not assume abandonment, or act hastily. Employers must follow a fair, documented employment process before ending employment on grounds of abandonment.
What Is Abandonment?
Abandonment may occur where an employee:
Is absent from work without approval or explanation.
Does not respond to calls, texts, or emails.
Appears to have no intention of returning to work.
If the employee is still in contact – even if their absence is unauthorised – this is not abandonment and should be managed as a disciplinary issue instead, if appropriate.
Employer Pro has separate information and resources available for employers on ‘Discipline and Dismissal Management’, including an Employer Toolkit containing comprehensive information, employer-focused step-by-step guidelines and template documents available for managing compliant warnings and dismissal procedures for conduct-based issues.
Key Legal Points
There is no fixed timeframe in law for abandonment, but most employment agreements require three to five consecutive working days of unexplained absence from work.
Termination must be substantively justified (e.g. a genuine belief the employee will not return) and procedurally justified (a fair, thorough and documented process).
Employers must act in good faith.
What Employers Must Do?
Before terminating for abandonment, employers must:
Check the employee’s employment agreement and any workplace policies for abandonment obligations, including any timeframes for unauthorised absence from work.
Make genuine and repeated attempts to contact the employee (phone, text, email, next of kin).
Keep clear records of all contact attempts. Evidence will be important in the event of subsequent legal dispute.
Write to the employee warning that their job is at risk due to abandonment and set a clear deadline for them to respond and return to work.
It is best practice to ensure a formal letter is sent to the employee in advance addressing key information, including the prospect of their employment being terminated for abandonment should they fail to return to work by a set deadline.
Case Law Snapshot – What Recent Decisions Tell Employers
Spotswood v Concrete Structures(NZ) Limited [2024] NZERA 9
The employer terminated the employee for abandonment before the required absence period specified in the employment agreement had elapsed, mistakenly believing the employee had been absent for three working days.
The Employment Relations Authority (‘the Authority’) found the employer’s response unreasonable, noting only one text message and one phone call were made before termination.
The dismissal was held to be unjustified. After a 25% reduction for contributory conduct, the employee was awarded over $17,000 in financial remedies (excluding the employer’s own legal costs).
Employer Takeaway: This case highlights the importance of an employer not rushing an abandonment process. Ensure the employee is absent without explanation, or authorisation for the required timeframe stipulated in their employment agreement, and that a number of attempts to contact the employee to clarify their whereabouts are made before termination and notify the employee about the potential of their employment being terminated on grounds of abandonment should they fail to return to work before a reasonable timeframe.
Surplus Brokers Limited v Armstrong [2020] NZEmpC 131
The employer unsuccessfully challenged an Authority determination that the employee had not abandoned his employment. The Employment Court (‘the Court’) confirmed that abandonment requires good grounds to believe the employee intended to leave their employment permanently.
The employer made no adequate enquiries to establish that intention, and the evidence showed the employee remained willing to accept further work.
The Court held there was no basis to justify termination for abandonment and dismissed the challenge. The Court confirmed the Authority’s award to the employee of over $13,500 in financial remedies (excluding the employer’s own legal costs).
Employer Takeaway: This case illustrates the sort of approach the Authority, or the Court will take when determining abandonment disputes and associated personal grievance claims. The Court found against the employer since it did not make adequate enquiries to establish the employee’s intention, and the evidence showed the employee was prepared to continue working and therefore their dismissal was unjustified.
When Not to Use Abandonment
Do not use an abandonment process where:
The employee leaves the workplace after a dispute or confrontation.
The employee is communicating, even sporadically.
The employer is aware of a medical issue, emergency, or bereavement.
In these cases, a support-based, or disciplinary process may be required depending on the circumstances.
Sample Abandonment Process
Confirm the required absence timeframe under the employment agreement, or workplace policy.
Attempt contact the employee using multiple methods and document each attempt over a period of days. Record contact attempts.
Send a formal letter warning of possible termination for abandonment and setting a response and return to work deadline, i.e. within a week.
If there is no response, confirm termination in writing on grounds of abandonment and request return of company property.
Employer Pro has a comprehensive Employer Toolkit available for managing a ‘Abandonment Process’, including step-by-step guidelines to manage the process, practical employer-focused template letters and documents, recording contact attempts and more for ensuring an abandonment termination process is managed correctly.
Common Employer Mistakes
Employers risk legal claims if they:
Act too quickly.
Fail to document contact attempts or fail to contact the employee at all.
Ignore contractual, or workplace policy requirements.
Terminate while the employee is still communicating, or otherwise knowing the employee has a genuine reason to support their absence from work.
Key Employer Takeaway
Abandonment should never be assumed and like other termination procedures there will always be risk of a potential legal challenge. Employers must take reasonable steps to confirm an employee has no intention of returning to work and implement a sound abonnement process before ending employment.
Compliance Warning
Ending employment without a fair, thorough and documented abandonment process can result in successful personal grievance claims. Employers should seek professional advice before implementing an abandonment termination process.
This article is provided for general information only and does not replace professional advice. Employers should seek advice specific to their circumstances from Employer Pro before terminating an employee’s employment for abandonment. Employer Pro has a range of employer focused resources and services available through our competitive Employer Protection Packages.
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