Abandonment of employment: what employers need to know

Recent Fair Work Commission (FWC) decisions, in the cases of Haque v dnata Airport Services Pty Ltd (the Haque case) and Debora Tavares Alves v The Trustee For T.C. Future Investment Unit Trust (the Alves case), provide timely guidance on how abandonment is assessed and whether it constitutes a dismissal under the Fair Work Act 2009 (Cth) (FW Act).

What is abandonment of employment?

Abandonment of employment is grounded in the common law principle of repudiation – conduct that objectively indicates an unwillingness or inability to perform the employment contract. The relevant test for employers, as set out by the Full Bench of the FWC in 2018, is whether the employee’s conduct would convey to a reasonable person in the employer’s position a renunciation of the contract or a fundamental obligation under it. In particular, employers must ask, are there circumstances where the employee is absent from the workplace without communicating with the employer to provide a reasonable excuse or explanation for the absence.

A repudiation must be accepted by the other party for the contract between them to end, so acceptance by the employer of the employee’s repudiatory conduct is essential.

Does acceptance of abandonment of employment constitute dismissal at the employer’s initiative?

Under section 386(1) of the FW Act, a person is dismissed if:

• their employment was terminated at the employer’s initiative, or
• they resigned but were forced to do so due to the employer’s conduct.

This definition is critical in determining whether an employee who abandons their job has been dismissed and can access unfair dismissal remedies or make a general protections claim involving dismissal.

A repudiation must be accepted by the other party for the contract between them to end, so acceptance by the employer of the employee’s repudiatory conduct is essential. However, given that the FW Act governs the employment relationship as a whole, applying the principles of repudiation in the context of a FW Act claim can be complex. The FWC Full Bench said in 2018: “Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”

Accordingly, despite the employer’s acceptance of the employee’s repudiation being the step that ends the employment contract, it is the employee’s conduct which is the cause of the employment relationship ending. In these circumstances, an abandonment of employment has not been considered to be a “dismissal” for the purposes of the FW Act.

However, differing approaches have been taken by the FWC since then, based on an objective assessment of the specific circumstances of the parties’ conduct, including the use of particular terms or words by the employer.

The Haque case

Mr Md Abdullah Haque, a cargo service delivery agent, had raised concerns about colleagues’ conduct and was sent home early on 9 December 2025 after tensions escalated. There was no clear agreement about next steps, and while his manager indicated that the matter would be investigated, Haque did not attend subsequent rostered shifts and did not respond to attempts to contact him. The employer sent a letter on 22 December 2025 asserting that his absence may constitute abandonment and indicating that, if he did not respond within five working days, it would assume he had resigned. Haque did not see the letter until after that deadline, and the employer ultimately processed his termination on 12 January 2026. The central issue was whether, in these circumstances, the employment ended by abandonment, at the employee’s initiative, or dismissal, at the employer’s initiative.

The decision underscores that “abandonment of employment” is not established lightly and turns on whether the employee’s conduct objectively conveys a clear renunciation of the employment contract. Mere absence from work, even coupled with a failure to respond to contact attempts, will not automatically amount to abandonment. The FWC emphasised that the test is whether a reasonable person in the employer’s position would conclude that the employee has evinced an unwillingness or inability to perform their fundamental obligations. The surrounding circumstances, in particular the ongoing workplace dispute and confusion about what was to occur after the employee was sent home, did not support a conclusion that the employee had formed a clear intention to abandon his employment.

Commissioner Crawford made observations about the practical difficulty in distinguishing abandonment from dismissal due to unauthorised absence in the context of the FW Act definition of dismissal. He expressed doubt about whether “abandonment” should operate to exclude a finding of dismissal under s386 of the FW Act at all, suggesting that it is often more straightforward to characterise these cases as a dismissal initiated by the employer for failure to attend work. This may indicate a reluctance by the FWC to rely on the more technical contractual concept of renunciation where the employer is, in substance, making the operative decision to bring the employment relationship to an end. Despite making these comments, the commissioner applied the reasoning of the Full Bench’s 2018 decision.

The case also highlights the importance of the employer’s communications when indicating acceptance of an employee’s repudiation. The employer’s correspondence said “dnata considers your absence to be unauthorised”, “dnata will assume you have voluntarily resigned”, and “your employment will be terminated accordingly”. This indicated that the employer retained control over whether the relationship continued. Combined with the absence of clear repudiatory conduct by the employee, this led the FWC to conclude that the termination occurred at the employer’s initiative.

The decision reinforces that, unless the employee’s conduct unequivocally demonstrates abandonment, and unless the correct words are used when accepting the repudiation, employers risk the termination being treated as a dismissal, with consequent exposure under the unfair dismissal and general protections regimes.

The Alves case

Ms Debora Alves, a long-serving office manager, ceased attending work following a severe mental health crisis. Her employer, CNA Accountants, attempted to contact her and her daughter over several weeks but received limited information. On 15 January 2025, CNA sent a letter stating that Alves had abandoned her employment and her employment would end in five weeks. On 19 February 2025, CNA confirmed the termination.

Alves filed a general protections claim, alleging she had been dismissed in contravention of Part 3-1 of the FW Act.

The commissioner was required to determine whether Alves’ employment ended at the initiative of the employer or due to her own conduct. In doing so, the FWC accepted the employer’s characterisation of a four-part test, based on Federal Court and FWC decisions. Commissioner Perica applied the test as follows:

• an unexplained or unauthorised absence from the workplace – Alves had been absent without adequate explanation from 19 November 2024;
• a reasonable period of time where the employee has been absent without explanation or authorisation – CNA made repeated efforts to contact her and obtain medical documentation;
• whether there was any communication from the employee during the absence or the communication from the employee clearly displays an intention of not returning for work – the only medical certificate provided covered the period up to 17 November 2024;
• whether there was any enquiry by the employer in the time period where the employee was absent – CNA was not informed of the full extent of her medical condition until after the termination.

The FWC concluded that Alves had abandoned her employment. Her conduct conveyed to a reasonable person in CNA’s position a renunciation of the employment relationship. Therefore, her employment ended not at the employer’s initiative, but due to her own repudiatory conduct.

Implications and best practice for employers

The decisions reinforce some important principles:

• repudiation must be accepted: an employer must take a clear step to accept the abandonment, such as issuing a letter confirming that the repudiation has been accepted. However, employers should be cautious about the phrasing and words used – the intention should be to communicate that the employee’s repudiation has been accepted, not that the employer has decided to terminate the employment because of the employee’s conduct;
• dismissal claims remain a risk: the FWC will look to the circumstances of each case, and an abandonment of employment objection can be difficult to establish. However, close attention to the employee’s conduct and clear communication of the circumstances and repudiation will assist;
• objective assessment is important: the test is not what the employee intended, but what their conduct objectively conveyed to a reasonable employer in the circumstances;
• communication matters: employers must make attempts to contact the employee, should document all attempts and seek clarification before concluding abandonment.

Employers must tread carefully, ensuring their actions are legally sound and procedurally fair. The cases highlight the importance of objective assessment, clear communication, and adherence to legal principles when dealing with prolonged employee absences.