When Absence Becomes Abandonment: Recent Case Law Developments

Understanding what qualifies as ‘abandonment of employment’ and what your obligations are as an employer

Background

What is abandonment of employment?

A number of recent cases have highlighted the importance of having clearly defined clauses in your employment agreements and workplace policies about what happens when an employee fails to show up to work without permission.

Abandonment of employment typically refers to a situation where an employee is absent from the workplace for a set period — often three consecutive working days — without notifying their employer or seeking prior approval.

Without a clear abandonment clause, employers risk breaching legal obligations by acting too soon or without proper process.

Employer obligations 

What counts as ‘reasonable attempts’?

Case law is clear: before concluding an employee has abandoned their job, employers must make reasonable efforts to contact them. This includes:

• Phone calls

• Text messages

• Emails

• Letters to the employee’s last known address

• Checking in with their next of kin, if appropriate

These efforts should be documented, and you should remain open-minded. In some cases, a legitimate reason may explain the absence, such as a serious injury, illness, or accident where the employee is unable to make contact.

Taking action

What to do when there’s still no contact

If the employee remains uncontactable and the abandonment period has passed, a formal written communication should be sent. It should state:

“Despite multiple attempts to communicate with you via telephone, text, and email — and having received no response — your continued absence from the workplace leaves the company with no option but to assume that you have terminated your employment by reason of abandonment.”

This should be delivered via email and, where possible, a physical letter to the last known address.

Avoid risk with the right policy in place

Business Canterbury offers a ready-to-use Employee Leave Management and Absenteeism Policy, which includes an abandonment clause. This policy is currently available at 20% off for the next month. [Click here to purchase]

As always, our members can access specialist guidance and advice to help ensure their policies are legally robust and fit for purpose.

Conclusion

Clear policies and communication are your best defence. Employers must follow a fair process and make reasonable efforts before treating an unexplained absence as abandonment — but having the right policy in place will ensure you’re covered.

Next Steps

• Review your employment agreements and absence policies.

• Ensure your abandonment clause is clear and consistent.

• Reach out to our HR team at hradvice@cecc.org.nz for tailored guidance.

• Contact Michael Prisk directly at michaelp@cecc.org.nz if you need support with a specific situation.