When does employee absence amount to abandonment of employment? Lessons from the Haque decision

When an employee stops attending work for an extended period without explanation and does not respond to any contact attempts, an employer may be tempted to treat the absence as ‘abandonment of employment’.

The Full Bench of the Fair Work Commission’s 2018 decision in Re 4 yearly review of modern awards – Abandonment of Employment [2018] FWCFB 139 (2018 decision) confirmed that ‘abandonment of employment’ may amount to repudiation, which entitles the employer to terminate the contract. While the employer takes steps to terminate the contract, the Full Bench explained that the employment relationship ends because of the employee’s repudiatory conduct.

Since the 2018 decision, several cases have followed the same approach, confirming that acceptance of an employee’s repudiation does not constitute a ‘dismissal’ at the initiative of the employer. However, the recent decision in Mr Md Abdullah Haque v dnata Airport Services Pty Ltd (Haque decision) suggests there may be ‘doubts’ as to whether the Fair Work Act 2009 (Cth) (FW Act) intends to exclude ‘abandonment of employment’ from the meaning of dismissal under section 386 of the FW Act. 

In this article, we revisit the definition of dismissal under the FW Act, explain the concept of abandonment of employment, and analyse what the Haque decision means for employers going forward.

What is abandonment of employment?

Under section 386(1) of the FW Act, a person has been dismissed if:

• their employment is terminated at the employer’s initiative; or
• the person resigned because they were forced to do so by their employer’s conduct, or course of conduct. For example, an employee may allege that they were forced to resign because they raised a workplace bullying complaint that was not adequately investigated by their employer.

In the 2018 decision, the Full Bench of the Fair work Commission explained how abandonment of employment is not considered to be a termination at the employer’s initiative by stating the following:

• 'abandonment of employment’ describes a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract
• 'abandonment of employment’ may be termed as renunciation of the employment contract, which is a species of repudiation which entities the employer to terminate the employment contract. The test is whether the employee’s conduct conveys to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it
• although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.

If the employment relationship has not been terminated at the employer’s initiative, there are significant consequences for the employee. For example, the employee will not be entitled to the provision of notice, or payment in lieu of notice, from the employer. Additionally, if an employee lodges an unfair dismissal application, or a general protections application involving dismissal, they won’t be able to establish a core component of the claim.

At the time of the Haque decision, the Fair Work Commission was required to determine whether an employee had been ‘dismissed’ to establish that it had jurisdiction to deal with a general protections application. Although this requirement was removed from 7 July 2026, following the passage of the Workplace Relations Legislation Amendment (Building Cooperative Workplaces No. 1) Act 2026 (Cth), the decision remains relevant because it highlights the challenges employers face when dealing with unexplained absences.

The Haque decision

Mr MD Abdulla Haque commenced employment with dnata Airport Services Pty Ltd (dnata) on 12 March 2025 as a cargo service delivery agent.

During his employment, Mr Haque raised several concerns about the conduct of co-workers and was sent home on 9 December 2025 following allegations that Mr Haque had been spreading rumours about other employees. After that day, Mr Haque did not attend work for his next rostered shift and did not respond to dnata’s multiple attempts to contact him by phone or email.

On 22 December 2025, dnata sent Mr Haque a letter stating that if he did not explain his absence within five working days, they will assume Mr Haque had voluntarily resigned from his position. Mr Haque did not view this letter within that period and dnata subsequently terminated Mr Haque’s employment on 12 January 2026.

Mr Haque then filed a general protections application, which dnata objected on the basis that Mr Haque was not ‘dismissed’.

In considering the matter, Commissioner Crawford stated that they have ‘doubts’ as to whether the FW Act intends to exclude the circumstances commonly referred to as an abandonment of employment from the meaning of dismissal under section 386 of the FW Act.

Commissioner Crawford stated that he considers the better view is that the employment ends at the initiative of the employer because the employer dismisses the employee for failing to attend work without explanation.

Commissioner Crawford considered that, in most cases, the employer will be reasonably well placed to explain why the dismissal was not unfair and was not in breach of the general protections by reference to the conduct of the employee.

However, Commissioner Crawford acknowledged the precedent of the 2018 decision still applied and assumed that a case of abandonment of employment falls outside the meaning of dismissal under section 386 of the FW Act.

Applying this test, Commissioner Crawford was not satisfied that the facts established that Mr Haque repudiated his employment contract.

Commissioner Crawford also considered the language used by dnata in the letter dated 22 December 2025, which suggested dnata had decided to end the employment relationship. Examples of this wording included:

• “dnata considers your absence to be unauthorised”
• “dnata will assume you have voluntarily resigned”
• “your employment will be terminated accordingly”.

As a result, the Commission found that Mr Haque was terminated and therefore dismissed dnata’s jurisdictional objection.

Key lessons for employers

The Haque decision reminds employers that an employee’s prolonged and unauthorised absence from work does not mean they can immediately assume the employee has abandoned their employment or that the employment relationship has ended. 

These situations need to be managed carefully. Employers must be able to show that they have taken reasonable steps to ascertain why the employee has not attended work before issuing any correspondence that brings the employment to an end or asserts that the employment has come to an end. Employers cannot assume the reason for the absence without making further enquiries.

If, following these enquiries, the circumstances indicate an unwillingness or inability on behalf of the employee to perform the contract or to be bound by the contract, the employer then needs to decide whether it elects to accept the repudiation. Any correspondence to an employee accepting the repudiation will need to be carefully worded to avoid suggesting, like in the Haque decision, that the employer is proactively terminating the employment at its own initiative and not in response to the employee’s abandonment of employment.

If you have any questions regarding this article or similar employment law scenarios, please contact us here.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Stephen Trew

Chloe Hamer

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