3 days you’ve been coming into the office and getting on with running your business.
3 days your employee has been off work.
3 days you’ve been waiting for them to get in touch and let you know what’s happening.
3 days they’ve not got in touch to let you know what’s happening.
Day 4 now – they’ve abandoned their job and per the 3 days absent without explanation clause automatically terminated their employment agreement, right?
Well, you could be on tricky ground here.
See, the law will let you regard someone’s employment as ended when they have abandoned their job.
But, it also requires that you establish that they have abandoned their job.
What does that mean? Surely if they’ve been away for 3 days without letting you know what’s happening, then that’s all you need to know right?
You’d think, but no.
The law requires you to make sure that something else isn’t going on.
Is your employee laid-up in hospital somewhere, unable to call you?
Are they at the beach in the sun, taking what they think is some hard-earned annual leave that they didn’t bother asking for or that you said they couldn’t take?
Are they intending to return to work?
Because if your employee has every intention to return to work, even if they haven’t bothered making that known to you, they haven’t abandoned their employment. They’re on unauthorised leave.
What’s the difference?
Well, if someone does not intend to return to work, they’re not going to. That’s the first difference and will make treating them as having abandoned their job a simpler process. Secondly, you will be on solid ground regarding treating the employee as having terminated their employment by abandonment, and you won’t need to notify and invite them to investigation meetings and consider the matter and reflect on an appropriate outcome.
If they do intend to return to work?
Then they haven’t abandoned work. If they don’t have mitigating circumstances (like they’ve been so sick they can’t communicate), then possibly they have committed misconduct. In which case you are going to have to follow the usual procedures related to misconduct.
What about that provision in their employment agreement that says 3 days away without explanation and they’re considered to have abandoned?
Well, in short, the law requires more. First, the employer has a duty to do everything reasonably possible to contact the employee and find out what’s happening. Are they planning on coming back? From a practical standpoint, keeping records, including call logs and emails, of all attempts to get in touch, at different times of the day, and each day, should be kept – just in case you have to explain your actions later on.
Second, strict application of a timeframe in an employment agreement could get you in trouble. 3 days absence could be annoying, and throw a serious spanner in the works of your business, but it isn’t necessarily going to be enough to justify deciding there’s been abandonment. In other words the 3 day period should be seen as a starting point, not the absolute rule.
Third, during your attempts to make contact and find out what’s happening, even at day 4, pointing out that a possible consequence of the situation is that they are going to end their own employment by abandoning their job, is necessary, more or less to ensure that they have as much chance as possible to understand where things are heading for them. And yes, as much as possible, it is necessary to point that out to them via a text, email, voice message when your call rings-through, even if they are ignoring you or you are unable to reach them directly.
Fourth, you need to establish after doing that, that they’re still staying away without explanation.
In short, as always, you have to behave in a way that a reasonable employer could.
Like so many things in employment law, sounds tricky right? Yep.
If you require any advice or further information on the matters dealt with in this publication, please contact the lawyer at Farry Law who normally advises you, or alternatively contact:
Wallace Revell
wrevell@farry.co.nz
09 353 6672
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry Law does not accept liability for any errors it may contain.