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dismissed while at father’s deathbed – the law on abandonment of employment

The setting for this case was against the background of an ongoing dispute between the parties regarding safety in workplace. Some months into the dispute Ms Choveaux took leave from the workplace on a mixture of sick and special leave, which was extended to accommodate her need to visit her terminally ill father. Following unsuccessful mediation, ACC required Ms Choveaux to make contact with the HR department and to return to work. When she did not do so, because she was away attending the bedside of her dying father, ACC terminated her employment for reasons of abandonment.

The case, as with most cases on the issue of abandonment, turned on the extent of communication between the parties. An abandonment clause is only applicable in limited circumstances, for example where an employee does not report for work and the employer has knowledge that they do not intend to do so. In all cases the employer is required to give the employee an adequate opportunity to explain their absence, and may only rely on an abandonment clause if that opportunity has gone unanswered.

In this case communication between the parties had been at cross-purposes. ACC believed they had set up an arrangement for Ms Choveaux to contact the HR department, whereas Ms Choveaux did not understand the nature of the obligation. Whilst ACC were correct in writing to Ms Choveaux to clarify the requirement and explain that she may risk an allegation of abandonment of employment, the Authority found that the extent of ACC’s knowledge regarding the reasons for Ms Choveaux’s continued absence was enough to negate an allegation of abandonment. During the period Ms Choveaux was absent ACC had been in regular contact with her lawyer, who was continuing to attempt to achieve resolution of the matters remaining in dispute and to facilitate Ms Choveaux’s return to work. Ms Choveaux’s lawyer had also specifically asked to contact the HR department as required on his client’s behalf, but was denied permission. Ms Choveaux had also given notice to her immediate manager of the reasons for her absence and her intention to return, which he did not pass on to HR. Further, ACC was aware of Ms Choveaux’s father’s health problems, and although it did not know that he was in fact dying, it was made aware of this shortly after it terminated Ms Choveaux’s employment, but upon learning this chose to rubbish the explanation and refused to consider reinstatement.

As a result, the Authority found that ACC had not been justified in relying on its abandonment clause to terminate Ms Choveaux’s employment. In particular the Authority concluded that: "ACC knew or ought to have known that Ms Choveaux had genuine reasons for her absence and ignored them in order that it could rely on the wording of its abandonment policy. That is not sufficient to meet its obligations of good faith".

The Authority particularly noted that the 2004 reinforcement of the good faith provisions of the Employment Relations Act, in fact place a higher threshold on employers when considering abandonment than previously. In particular there is a duty to be responsive and communicative with regard to establishing the reasons for absence and whether the employee intends to return.

This case is a reminder that the use of abandonment clauses needs to be approached with caution. For a start, termination of employment for reasons of abandonment is dependent solely on the specific clause contained in the employment agreement. Further, whether use of the clause is justified is heavily dependent on the facts of the case. Often cases that employer’s consider to be abandonment are better dealt with by disciplining the employee for repudiatory conduct or wilful disobedience, particularly if the employer is in fact aware of why the employee is not at work.

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