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Cottoneyes
03-08-2012, 12:54 PM
Scenario is an employee is collected from the worksite by the boys in blue and does not return to work. Length of absence can be anything from a few days to a number of years while they are a detained guest of Her Majesty.
How would you handle the situation?
Assuming the employment is terminated, is there anything that points to whether the employee ceased the employment, or would it be more the employer ceased the employment?
Just observing a case currently being handled by a colleague where the employee in question has been away for a few years and is claiming their leave entitlements. The manager at the time of the incident handled it as a resignation without notice and claimed the leave entitlements as part of the notice period. The former employee is claiming the business terminated his employment and is now chasing notice and the leave entitlements.

Moz
03-08-2012, 12:59 PM
How would you handle the situation?


Abandonment of employment.

Qld IR Consultant
03-08-2012, 01:00 PM
Cottoneyes, I handled a similar situation. Easiest way to do it is to try and contact the employee through counsel or courts. If this is unsuccessful you can deem him to have abandoned his employment and proceed. Basically you need to show that you made some sort of effort to find out how long he was going to be absent.

Easiest thing to do also is pay out his accrued entitlements and wave the notice period....Small price to pay for negating future claim issues......

Neb-Maat-Re
03-08-2012, 02:43 PM
I agree with the above - although I did once work in an environment where employees were regularly jailed for short peiods - and would often ask for annual leave to cover their absence!

I guess it was good of them to at least ask, but unfortunately they were in a summer-shut-down everyone-has-leave-at-once arrangement.

Tiger
06-08-2012, 10:12 AM
Interesting one. I've had a few such cases (comes with working in a blue collar environment).
As one other responded "abandonment of employment" definitely.
However, these situations need to be acted on immediately (not after 4 yrs)!
Like everything else in the workplace, you do need to look at individual situations. People can be jailed for different things and depending on the nature of the crime, this can well impact on what you the employer decide to do. A white collar crime such as embezzlement is a no brainer, particularly if the employee was in a finance related position. Definitely a termination on the spot.

Assault, battery etc whilst perhaps not resulting in too much time in jail has, in my experience, always resulted in the employee resigning.
Another I had (related to vehicular accident charges) resulted in the guy just not showing up one day. We found out from mates he'd been sent to jail! We made every effort to contact next of kin (found his sister) and notified him in writing his employment was terminated due to abandonment of employment.

Another (also vehicular related) was 6 mos jail time. He was a good worker and the circumstances were somewhat unfortunate (+ he did communicate with us) so we put him on an unpaid leave of absence for the duration of his jail time and took him back when he came out.

I'm sensing that in the case you are exampling, nothing was done at the time of the offence/start of jail time?? That's the first mistake. Whatever action you/your friend's company intended to take, it should have been actioned/put in writing immediately. Even with abandonment of employment, you always notify the individual somehow - even if the individual claims he was never advised, you'd have registeredmail receipts etc (for mail sent) to show for trying to make contact. But if you know someone is in jail, then I'd be sending a letter to them at the jail as well (again always with a signatory to prove it was delivered).
Not sure if I agree with Qld IR on paying out accrued leave for time he's been in jail (if that is what you meant)! I woudn't do that. Certainly he should be paid whatever entitlements he had at the time he went to jail if that has not already been done. Do that and inform him in writing it's been paid to his bank account and advise that his employment has been terminated at the time he went into Her Majesty's care on the basis of abandonment of employment.
There is a lesson here -- the managers at the company in this example need some training about monitoring their employees and making sure any kind of absence does not go unexplained and actioned. Someone dropped the ball here - next thing you'll be telling me is Payroll continued paying the guy!!! Don't laugh - this happend in a coy prior to my joining them - I discovered it!! Aaaahh the joys of HR.

Cottoneyes
06-08-2012, 10:37 AM
Thanks for the replies so far. Seems like it is going to come down to a case of proper processes not being followed.
Seems the employee in question put in a 10 second call to his manager just before the handcuffs were whacked on and said 'sorry, I have to go, can't keep working' or words to that effect.
The manager has taken it that the employee resigned, the employee is claiming he did not have a job to come back to so therefore he was sacked by the company.
Nothing was in writing so alas again there is a problem to deal with due to the former HR actions or lack of. I'm tipping that due to the lack of paperwork, it will end up being a case that we pay the leave and let it go.
There's been some thought that frustration of contract might come into it, has anyone ever seen this in employment cases though?

HeyPete
06-08-2012, 10:40 AM
Frustration of contract should only be used for cases of death as far as I know. I'd leave that one untouched.

dcemprel
08-08-2012, 01:57 PM
I've had similar issues and also abandonment of employment where the individual couldn't or wouldn't acknowledge receipt of communications. To cover all bases that contact was attempted I have used the newspaper Public Notices requesting the employee to make urgent contact - holds up just fine in external jurisdictions.

Greg Schmidt
08-08-2012, 04:49 PM
Abandonment of employment is an appropriate mechanism to use if the (former) employee has not made adequate efforts to explain his absence or seek leave. It's still probably going to be the employer who has to formally give effect to the separation by terminating the employment contract - or by advising the employee in writing that the employer is acting on the basis that the employee has resigned without notice, and the resignation is accepted.

But for a contrarian view...

If the employee has made reasonable efforts to advise his employer of his situation and explain when he is likely to return, then it's harder to justify termination through abandonment of employment. Frustration of contract is more appropriate if the individual is willing to work but incapable of working due to his incarceration. Again, it's probably going to be the employer who formally terminates the contract of employment as a way of resolving any uncertainty about whether the jailed individual is still an employee or not. Any obligation on the employer to provide notice of termination can be satisfied by requiring the employee to work as normal through the notice period. The employee won't do this, so the unauthorised absence results in no pay during the notice period. Naturally, it's easier if this all happens at the appropriate time, instead of trying to piece it together several years later.

However,
Seems the employee in question put in a 10 second call to his manager just before the handcuffs were whacked on and said 'sorry, I have to go, can't keep working' or words to that effect. If this is interpreted as a resignation then the employer would be entitled to withhold money due to insufficient notice of termination. However the courts may rule that the employee did not intend to resign but was simply indicating his status for the remainder of the day.

Overall, my suggestion would be to deem the employment terminated through frustration of contract, and pay out entitlements accrued up to the date of incarceration, without any deductions (or additional payments) based on notice or lack of notice.