Abandonment of employment: Legal risks and employer responsibilities

On the surface, it is understandable how an employer might consider that an employee who has not turned up to work for a prolonged period of time could be considered to have abandoned their employment. However, the Workplace Relations Commission (WRC) and the Irish courts have continuously held that there is a very high threshold to be met before an employer can determine that an employee has abandoned their employment. 

Abandonment of Employment 

There is no universal description of what constitutes abandonment of employment, and it is advisable that employers should define what turns prolonged absences into job abandonment in their internal policies. 

There are generally two different scenarios that arise when it comes to abandonment of employment. The first is where an employee does not communicate in any way with their employer and does not attend work for a prolonged period of time. The second is where an employee communicates sporadically with their employer during a prolonged period absence. 

While both scenarios are frustrating for an employer, as can be seen from the case law discussed below, any indication from an employee during a period of prolonged absence that they did not intend to abandon their employment, will be relied upon by the WRC to find against an employer for dismissing an employee in these circumstances. 

Risks 

Employers who deem an employee’s employment to be terminated on the basis that they have abandoned their employment run the risk of an employee bringing a claim under the Unfair Dismissals Acts, 1977-2015 (UDA) on the basis that they have been unfairly dismissed. If successful in this claim, an employer could face having to pay the employee up to two years gross remuneration or being ordered to re-instate or re-engaged with the employee.

Recent Case Law

Brian Meagher v Irish prison Service Ips ADJ-00049744 (Meagher)

In the recent WRC decision of Meagher, the Respondent was ordered to re-engage the Complainant, subject to a six-month probationary period. The Adjudication Officer (AO) held that the Respondent had unfairly dismissed the Complainant in circumstances where he was dismissed for abandoning his employment to fight in the Ukraine Russia war. In this case, the Complainant left Ireland to go to Ukraine without informing the Respondent. Between June and November 2022, all correspondence from the Respondent to the Complainant went unanswered. However, the Respondent had been made aware from media reports that the Complainant was fighting in Ukraine and reportedly received injuries on the battlefield. While there had been no contact from the Complainant for nearly five months, the Complainant did begin to correspond with the Respondent from November 2022 onwards. During this time, the Complainant provided medical reports and attempted to justify his absence without leave. Despite this, the Complainant was notified that he had been dismissed with effect from 19^th May 2023. 

In his findings, the AO held that the Complainant “did not intend to abandon his post”. In coming to his decision, the AO considered that the Complainant had attempted to put alternative cover in place for his absence (although this was unsuccessful as he was not allowed to communicate while on combat duty). The AO also considered the Complainant’s intention that his assistance in Ukraine would be short term, the fact that his daughter is Ukrainian, his previous service in the Defence Forces, his naivety and his life-threatening injuries which led to an inability to engage with the Respondent or reply to its correspondence.

Concluding that the decision to dismiss the Complaint was unfair and that it lacked procedural fairness, the AO held that there was no formal hearing provided by the Respondent where the Complainant could have been competently represented and could explain why he left his position. The AO also found that there was no serious consideration evident in the Respondent’s submissions that it seriously engaged with the explanations provided by the Complainant and that a fair and balanced investigation had been conducted.

Seamus Brett v Peter Mooney & Co Ltd ADJ-00045078 (Brett)

Abandonment was also considered in the 2024 case of Brett. Here, the Respondent submitted that the Complainant refused to return to his employment following a period of almost two and a half years of absence. In such circumstances, the Respondent submitted that the Complainant effectively abandoned his employment, and therefore, his dismissal should be deemed to be fair for the purposes of the UDA. In contesting this position, the Complainant submitted that the Respondent failed to facilitate his return to work, and that, in the context of the Covid-19 pandemic, he had valid health and safety concerns that were not addressed. The Complainant further submitted that the Respondent terminated his employment without recourse to any form of procedure and, as such, the dismissal should be deemed to be unfair.

In this case, the AO held that the Complainant positively stated his intention to return to employment on a number of occasions. While it was apparent that the Complainant did fail to respond to the Respondent’s communications, the AO held that this could not be said to automatically result in the abandonment of his employment, particularly in circumstances whereby the Complainant had previously positively expressed his intention to return to work.

The AO held that the Respondent had formed the view that it could not continue to employ the Complainant in circumstances whereby he would not take active steps to facilitate his return to work and the Respondent issued the Complainant with an ultimatum of responding by a certain date, failing which his employment would be deemed to be terminated. The AO held that in such circumstances, the dismissal of the Complainant should have occurred as a matter of conduct or capability, both of which involve a process the Respondent did not undertake. 

Key take aways from the case law

Intention is necessary

It is clear from the case law that the WRC will look at an employee’s intention when determining whether the employee did in fact abandoned their post. In order to determine intent, there is also an obligation on behalf of the employer to make reasonable efforts to determine the employee’s intention. The employer should investigate the facts, to see whether to a reasonable employer, an intention to resign is the correct interpretation of the facts. [1] 

In Brett, the AO held that the Complainant did not express any intention to terminate his employment and in fact, had positively stated his intention to return to employment on a number of occasions. 

A deliberate act is required 

Passiveness on behalf of the employee will usually not be enough to shift the presumption that a dismissal was unfair. In the matter of Tina Casey v Dunnes Stores [2003] 14 E.L.R. 313, the Employment Appeals Tribunal commented that, “For a dismissal to occur, an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just.”

In Brett the Respondent submitted that the Complainant, by virtue of his failure to respond to their correspondence, abandoned his employment and no longer intended to be held by the terms of the same. However, this was not accepted by the AO.

No such thing as “self-dismissal”

Some employers may be under the mistaken impression that if an employee has not turned up to work, they have dismissed themselves. However, under Irish law, there is no provision for “self-dismissal”[2] .

Under the UDA, a dismissal is deemed unfair unless there are substantial grounds to justify the dismissal. In the case of A School Cleaner -v- A Contract Cleaning Company ADJ-00019068, the AO noted that “there is dismissal or there is resignation/constructive dismissal”. Accordingly, if an employee is found not to have resigned, the onus falls on the Respondent to show substantial grounds to justify the dismissal.  

In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it will be deemed to be a “self-dismissal”. 

Practical Tips for Employers 

Put an Absence Management Policy in place

Employers should have a policy in place that details the procedures that will be followed if an employee is absent from work and is not engaging with the employer. This policy should also define what the employer considers abandonment and should be consistently applied. 

The policy should also set out that a breach of the policy could lead to a termination for gross misconduct and set out that an employee may be referred to disciplinary hearing with a sanction up to and including dismissal from employment. Fair procedures and natural justice also provide that an appeal mechanism should be available to an employee on foot of a dismissal for abandoning their employment. 

If an employee does begin to engage with the employer during a prolonged period of absence, as was the case in Meagher, the employer should provide the employee with fair procedures. In Meagher, the AO criticised the Respondent for not holding a formal hearing where questions could be raised, and further evidence presented. The AO called this a failure by the Respondent to “demonstrably show that the officer was fairly heard and competently represented allowing for his serious injury, a failure to show they understood and engaged with his defence”.  The AO also criticised the Respondent for not adequately considering the Complainant’s explanation about paid cover to another colleague of a very significant amount of money, his intention of returning to Ireland and the mitigating factors that extended his absence such as serious life-threatening injury and trauma.  The AO went on to say that “limiting the investigation in this case, which is complex, to an exchange of correspondence and the right to a written reply does not meet the requirement for fair procedures where gross misconduct is alleged.”

The procedural flaws and failure to have regard to all the circumstances led to the AO concluding that the Respondent had not shifted the presumption of an unfair dismissal.

Document all attempted correspondence with the employee 

All attempts at contacting the employee should be well documented. Employers should also consider contact through various means. For example, by post, personal email address and by call or text. 

This correspondence should refer to the absence management policy and inform the employee that continued non-engagement and/or abandonment of their employment will result in disciplinary action, up to and including dismissal. If an employee does begin to engage with this correspondence, they should be allowed the opportunity to explain their absence. If it is determined that the employee will be disciplined for breaching the absence management policy, the employee should be invited to a disciplinary hearing and other sanctions, below dismissal, should also be considered as a sanction. 

If the employee does not engage with the correspondence, they can be informed that a disciplinary hearing will be held in their absence and a decision will be made without the benefit of their input. 

Give the employee reasonable time to respond to correspondence 

While it can be frustrating if an employee does not respond to repeated communications, unfortunately there is no quick fix. As can be seen from Brett and Meagher, an employer will need to take their time before acting. When communicating with an employee during a period of prolonged absence, reasonable time should be given to the employee to respond, and reasonable notice should be given for any scheduled meetings. 

Conclusion 

Determining whether an employee has actually abandoned their employment requires a careful and structured process to be carried out by an employer. In order to protect against UDA claims, employers must thoroughly investigate an employee’s absence and take reasonable steps to contact them before making any termination decision. 

The RDJ Employment Team regularly advises employers on dealing with abandonment of employment. 

[1] Redmond on Dismissal Law, Ryan, 3rd Ed, 2017 at para 22.25 

[2] “Employment law” Meehan, 2014 at 20.68