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.

More employment law

Employment Law
Ace Payroll does not give legal advice but these employment law articles may assist more..
Minimum Wage
To check the current minimum wage, visit the New Zealand government website more..
90 Day Trial Periods
New employees can be on a trial period of up to 90 days more..
Daylight Saving
Daylight saving dates and handling related employment issues more..
Redundancy must be genuine
An employee can only be made redundant if their position no longer exists more..
Dismissal procedural fairness
An explanation of the meaning and importance of procedural fairness when terminating employees more..
Employee or contractor
Use this checklist to clarify the difference between an employee and a contractor more..
Contractors minimum wage
Contractors are not entitled to the minimum wage more..
Employee interview honesty
An employee must be honest at a job interview or risk subsequent dismissal more..
Employee deductions
Cannot make deductions without employee consent more..
Retreiving overpaid wages
An employer can retrieve overpaid wages if done correctly more..
Employment relationships
Make it clear when and how an offer of employment will be made more..
Terminated before started
Resigned from old job, then told new job no longer available more..
Video surveillance
The use of video surveillance by employers is common and legal more..
Host responsibility
Think about the safety of employees affected by alcohol at work functions more..
Failure to meet targets
An employee can be justifiably dismissed for failing to meet targets more..
Change pay frequency
Pay frequency can be changed if properly managed more..
Abandonment of employment
Must inquire into circumstances of worker's absence more..
Changed working hours
Redundancy possible if employee does not agree more..
Drivers license
Truck driver loses license. Dismissal fair and reasonable more..
Internet usage
You would be wise to have a policy for personal internet usage more..
Absent employees
Some tips on dealing with absent employees more..
Payment for Jury Service
There is no obligation on an employer to pay for jury service more..
Recruitment health questions
Health questions employers are entitled to ask prospective employees more..
Holiday And Leave Contents
Holiday pay, public holidays, sick and bereavement leave information more..
Alphabetical Index
The Ace Payroll alphabetical index provides links to all documentation more..
Ace Payroll FAQ Contents
All the most common Ace Payroll questions grouped by categories in a short table of key words more..