Industrial Relations is a complicated area and a potential minefield for employers. Here are a couple of areas in which you need to be informed in order to protect your interests.

Abandonment of employment

It has become increasingly common to hear of employees going missing for a period of time without any indication that they intend to return.

This can come about as a result of an altercation at the workplace or even following a performance management review. You cannot simply assume that the employee has abandoned his/her employment and must be proactive in trying to verify his/her intentions. Attempts should be made via phone, text or email to confirm the employee’s intentions. If that fails, you should send the employee a registered letter indicating that unless you hear from them within, say, five days, you will assume they have no intention of returning and will treat the issue as an abandonment.

For a confirmed abandonment, the employee has effectively left their employment without giving the required notice, which this leaves them open to having the notice period deducted from their final pay.

Constructive dismissal

In a situation where an employee resigns as a result of some action taken by the employer there is a potential for the employee to lodge an unfair dismissal claim. The Fair Work Commission treats these matters as ‘constructive dismissals’, i.e. the employee felt he/she had no alternative but to resign given the actions of the employer.

The most common example of this involves a demotion due to poor performance. Prior to an actual demotion, it’s important that the employee be given clear advice that unless their performance improves in specific ways and within a specific timeframe, they will be demoted. This process is particularly important where the demotion involves a loss of remuneration. If the employee ‘spits the dummy’ and walks out after being given this ultimatum, any claim of constructive dismissal is highly unlikely to succeed as he/she has not taken up the opportunity to show improvement.
A range of other scenarios can also trigger claims of constructive dismissal and include bullying, harassment, discrimination, excessive supervision and treating one employee less favourably than others. As with any claim of unfair dismissal, the facts will determine whether the applicant has an arguable case.

Knowing where you stand when it comes to termination of employment – at the instigation of either the employer or employee – is vital to protect your company’s interests and avoid potentially costly litigation.

Ted Kowalski

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