Your rights: What to do when staff disappear

A few weeks ago there was a question in this column by an employee who was told they had abandoned their employment.

From the answer, it seemed like it was pretty hard to dismiss someone who hasn't turned up at work for a few days.

I'm on the other side of the situation - one of my staff hasn't been at work for four days now and I haven't heard anything from her.

Has she abandoned her employment? What should I do about it?

"Abandonment of employment" is a commonly misunderstood term. It basically means an employee has gone "Awol" - absent without leave.

But before employers can conclude that any employee has abandoned their employment, they must take reasonable steps to track the employee down. This may include phoning, faxing, emailing the employee, or even visiting the employee's last known address.

The final step in the process is usually to courier or post a letter by registered mail to the employee's last-known address requesting the employee contact the employer by a specified date and, if they fail to do so, the employer will be forced to assume they have abandoned their employment and employment will end for reasons of abandonment.

Many employment agreements contain abandonment clauses. These generally say that if an employee doesn't show up to work for a specified number of days (usually three or four), the employer will conclude that the employee has abandoned their employment and employment will end for this reason.

But abandonment clauses do not let employers off the hook - they still need to make reasonable attempts to track down missing employees, which usually takes longer than three or four days (let alone two).

You should check the employee's employment agreement for an abandonment clause.

If you do manage to track down the absent employee, you cannot end the employment for reasons of abandonment.

But you will be well within your rights to address the employee's unauthorised absence from work through a disciplinary procedure, which may result in a warning or even dismissal.

You need to check the employee's employment agreement and try to track her down before you can decide to start a disciplinary procedure.

If you do track down the employee, you should address the employee's unauthorised absence from work through a fair procedure, giving the employee an opportunity to explain the reasons for her absence before making any decision to take disciplinary action (especially if dismissal is a possibility).

You need to take care over what action you take and make sure you follow a fair procedure, otherwise the employee may have good grounds for pursuing a claim against you for unjustified dismissal.

* Kate Hoyle is a solicitor in the employment team of transtasman law firm, Phillips Fox.