Abandonment of Employment in Australia: There Is No Fixed Number of Days

There is no general Fair Work Act rule that a fixed number of absent days equals abandonment of employment. Modern awards no longer contain valid automatic-termination abandonment clauses, and whether unexplained absence ends the employment turns on ordinary contract principles.

There Is No Fixed Number of Days in the Fair Work Act

Neither the Fair Work Act 2009 (Cth) nor the National Employment Standards sets a fixed number of days after which an unexplained absence automatically ends someone's employment. Figures like "three working days" or "14 days" that circulate in general commentary come from older modern award clauses, not from any general statutory rule, and, as explained below, those specific clauses have themselves been found to have no legal effect. Whether an employee has abandoned their employment is instead a question decided under ordinary contract law principles, applied to the specific facts of the absence, not a countdown that runs out on a set date.

Why the Old Award Abandonment Clauses No Longer Work

A number of modern awards used to include a clause providing that an employee's continuous absence for more than a set number of working days, without the employer's consent and without notification, was prima facie evidence of abandonment, deemed to be confirmed if the employee did not establish reasonable cause within a further set period. In a 4 yearly review of modern awards, a Full Bench of the Fair Work Commission considered six awards with this kind of clause in Abandonment of Employment [2018] FWCFB 139, decided 23 January 2018. The Full Bench found that a clause deeming an absence to automatically terminate employment was not a term permitted or required in a modern award under the Fair Work Act, and was therefore of no effect. Following that decision, abandonment clauses were removed from modern awards rather than replaced with a new fixed-day rule, so an employer cannot rely on an award clause to automatically end employment after a specific number of absent days.

What Actually Ends the Employment: Repudiation and Renunciation

With the automatic award mechanism gone, whether an unexplained absence ends the employment is assessed under the ordinary common law of contract. The Fair Work Commission's own benchbook describes the relevant concept as renunciation, a species of repudiation: conduct by one party that would convey to a reasonable person, in the position of the other party, an intention no longer to be bound by the contract, or by a fundamental obligation under it. This is judged objectively, based on the conduct itself, not on whether the absent employee subjectively intended to give up their job. Where an employee's conduct does amount to renunciation, it is still the employer's decision to accept that repudiation, and thereby end the contract, that actually brings the employment to an end, which is why abandonment cases are generally analysed, for unfair dismissal purposes, as a termination at the initiative of the employer rather than a resignation.

What an Employer Should Do Before Treating Employment as Abandoned

Because the question turns on what the absence, viewed objectively, actually shows, the Fair Work Commission has repeatedly emphasised that an employer will normally be expected to have made genuine attempts to contact the employee to find out why they are absent, before concluding the employment has ended. That typically means using multiple contact methods, such as phone, text, email and contacting an emergency contact, over a reasonable period, and documenting those attempts, rather than assuming abandonment from the mere fact of the absence. An employer that jumps straight to treating an absence as abandonment, without those steps, risks having that decision characterised later as a dismissal at its own initiative rather than a resignation, which then exposes it to an unfair dismissal claim if the dismissal was not for a valid reason or was not conducted fairly.

A Real Case: Thompson v Zadlea Pty Ltd

Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687 illustrates the risk directly. A welder on a temporary visa left the workplace after an altercation with a colleague and then obtained a medical certificate stating he needed to be off work until a later date. During his absence, the employer concluded he had abandoned his employment because he had been away for more than three days, and withdrew its visa sponsorship nomination as a result. The Fair Work Commission was not satisfied the employee had abandoned his employment, noted that the employer made no attempt to contact him after he left the workplace, found that withdrawing the visa nomination amounted to a dismissal at the employer's initiative, and held that dismissal was harsh and unreasonable. The Commission ordered compensation. The case shows that acting on a fixed-day assumption, without attempting contact, can produce a finding of unfair dismissal even where the employer genuinely believed the employee had walked away from the job.

Valid Reasons for Absence That Aren't Abandonment

An employee who is unexpectedly hospitalised, seriously ill, dealing with a family emergency, or caught up in a dispute with the employer about their treatment at work has not renounced their employment contract merely because time has passed without them making contact. The Fair Work Commission has found, in cases like Sharpe v MCG Group Pty Ltd [2010] FWA 2357, that an employee who had notified their employer of an inability to attend work for medical reasons, and was then treated as having abandoned their employment for not attending as directed, had in fact been dismissed by the employer rather than having abandoned the role. The presence of a genuine, even if imperfectly communicated, reason for the absence cuts against a finding of renunciation.

The Risk of Getting It Wrong

An employer that treats an absence as automatic abandonment, without attempting contact and without a fair process, does not avoid unfair dismissal exposure simply by calling it "abandonment" instead of "dismissal." The Commission looks at the substance of what happened, and if the employer's own conduct, such as ending pay or notifying a third party like a visa authority, is what actually terminated the relationship, that can be treated as a dismissal at the employer's initiative. An employee in that position can bring an unfair dismissal application, generally within the standard 21-day deadline, or a general protections claim if the real reason involved a prohibited ground. See Unfair Dismissal in Australia and General Protections and Adverse Action.

This article provides general information about abandonment of employment under Australian Commonwealth workplace law as at 19 July 2026. It is not legal advice, does not take into account your individual circumstances or the terms of any applicable modern award, enterprise agreement or employment contract, and does not account for later legislative or Fair Work Commission developments. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory, the Fair Work Ombudsman, or the Fair Work Commission.

Related reading: the Australia employment law hub, Unfair Dismissal in Australia, General Protections and Adverse Action, and Notice of Termination in Australia.