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Must make enquiries before assuming employment abandoned

What should an employer do if a worker does not report for work, and does not advise of the reason for his or her absence? Is the employer entitled to assume that the worker has abandoned his or her employment? The Employment Court dealt with this issue in a recent case.

EN Ramsbottom Limited employed Jody Chambers as a labourer. Mr Chambers did not have a written employment contract.

In May, Mr Chambers worked with two other employees lifting heavy drainage pipes from the ground onto the flat deck of a truck. Overnight, he began to experience groin pains and went to the doctor. He telephoned the Company's Managing Director, Mr Edward Ramsbottom, and later delivered an ACC medical report from his doctor stating that he was unfit for work for 3 days. Later, he also delivered to Mr Ramsbottom a second certificate stating that he was fit for work from early June.

Early June, Mr Chambers returned to work. He asked Edward Ramsbottom whether his ACC papers were in order. Edward Ramsbottom thought that his ACC claim was a "try on". He warned Mr Chamber's that his work performance was not up to scratch and that he was thinking of letting him go.

Edward Ramsbottom then spoke briefly with his son, Martin Ramsbottom, before leaving the yard. Mr Chamber's thought they were discussing whether or not to terminate his employment. After Edward Ramsbottom had left, he went over to Martin Ramsbottom and asked, "What's your Dad doing? Is he letting me go?"

Mr Chambers understood that Martin replied "Yes. We're letting you go". He then left work believing that he had been dismissed. The Tribunal however found that Mr Chambers was mistaken - that Martin Ramsbottom did not dismiss him, but instead referred him on the matter back to his father.

Thirteen days later, Mr Chambers brought a personal grievance against the Company for unjustified dismissal. The Company denied that it had dismissed Mr Chambers. It claimed that he had abandoned his employment by walking off the job and not returning to work.

The Tribunal dismissed Mr Chambers' personal grievance on the basis that he had not been dismissed. It also held that the Company was under no obligation to inquire why Mr Chambers was not at work before concluding that he had abandoned his employment. Mr Chambers appealed.

The Employment Court disagreed with the Tribunal.

"...there was a dismissal of [Mr Chambers] by the respondent company due to the combined actions of Edward Ramsbottom and Martin Ramsbottom, and by their failure to fairly check the situation with [Mr Chambers] when he did not appear for work as they expected. Edward Ramsbottom's assumption that [Mr Chambers] did not want to work was baseless and reached without any consultation with [him]" Judge Shaw said.

Judge Shaw awarded Mr Chambers $360 for lost wages, $6000 compensation for humiliation and distress, plus costs.

This case shows that an employer is not entitled to simply assume that because a worker has not reported for work, he or she has abandoned his or her employment. Instead the employer must inquire into the circumstances of the worker's absence. The employer must also consider renewing the worker's employment if there is a legitimate reason for the absence.

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