Abandonment Due To Jail

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Published 04 Dec 2018

Abandonment of employment is a situation where an Employee is absent without permission with no intention of returning. It is often invoked in error by Employers for simple unauthorised absence. Unauthorised absence is a misconduct issue and the process is very different. If the Employer knows where the Employee is, or has had any communication from them abandonment cannot be used.
There is no legal minimum time which defines abandonment, it comes down to what is considered fair and reasonable. Three days as a minimum is acceptable.

There is an onus on the Employer to make all efforts to contact the Employee to establish their intentions, and only after all avenues of contact have been exhausted should termination occur. All contact attempts should be documented so the Employer can clearly prove a paper-trail of evidence in this regard.

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The Employer should have an abandonment clause in the Employment Agreement or Staff Handbook which outlines very clearly what time period you consider an abandonment to have occurred.

Recently we saw an interesting case when an Employer dismissed a staff member for abandonment of employment because he was sentenced to jail.

Restaurant Brands Ltd (RBL) terminated their Employee after he failed to turn up for 3 shifts in a row. Un-known to them at the time because their staff member had be imprisoned. Following a subsequent notification from the Employee's lawyer alerting them to the situation they waited and called a meeting with the Employee for approximately 1 month later after his expected release date.

After a no-show at the meeting and no further communications they terminated his employment.

Months later RBL received a Personal Grievance from the Employee's lawyer. A poorly worded dismissal grievance with no explanation for how or why the dismissal was unjustified filed way outside of the 90 days after the time for raising grievances, argued it was the responsibility of the Employer to find the Employee in the prison system.

Fortunately, the Employment Relations Authority disagreed saying it was more reasonable that the Employee took steps to inform the Employer of their situation and location in that instance and also pointing out 90 days after the event had expired.

Unsurprisingly, dismissal and discipline process are the most contended of issues in terms of Employers receiving Personal Grievances. The justification for disciplinary action is not usually the problem, the Courts largely dwell on process, and Employee advocates know this.
Ensure you get your processes correct and follow our discipline templates in the Employers Toolbox;
• General Misconduct
• Serious Misconduct
• Substandard Performance
• Abandonment
• Medical Incapacity
• 90 Day Trial Periods
• and more...

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