Monitoring Employee Working Hours

It can be one of the most frustrating occurrences for an employer when monitoring

employee working hours; to have an employee who fails to turn up to their rostered shift and neglects to provide the employer with any notice of their absence. This type of situation can easily escalate to an employee being absent from work for a number of days with no explanation or notification.

An immediate response for an employer may be to treat the employees employment as terminated and implement good HR management. This can be an available option for an employer; however, certain steps must first be followed.

In order to treat the employees unauthorised non-attendance at work as a termination of their employment, otherwise known as abandonment, the employer must satisfy certain criteria.

Firstly, an employee must be absent from work for a period of time, without the employer approving the absence. The employee needs to be shown to have neglected to provide any notification to the employer and it must genuinely seem to the employer that the employee no longer wishes to be bound by the terms of their contract of employment.

The minimum period of absence for the purposes of abandonment could be dictated by the employees contract of employment (where the employee working hours are stated); the employers absence reporting procedure, in a Collective Agreement which covers the employee or it might be set out in a Modern Award which covers the employees employment.

A contract or policy can often state that an employee will be deemed to have abandoned their employment if they fail to attend work or notify their employer of their absence for three consecutive rostered shifts. Case law has held that an unauthorised absence of one or two days could not be construed as abandonment (Moore v Levelan Pty Ltd [2004] AIRC).

Secondly, an employer must take steps to contact the employee to ascertain their whereabouts and determine why they have not abided by their employee working hours. Contacting the employee would initially involve a phone call to them or an email, but if no contact can be made then a letter should also be sent to their home address. The letter should request that the employee make contact with the employer as soon as possible, and that if no contact is made by the employee they will be deemed to have abandoned their employment.

Particular care should be taken when an employee has had an authorised period of absence from work covered by a medical certificate which then expires, and the employee fails to return to work. The employer has been on notice that the employee has been incapacitated, and special care should be taken to contact the employee to determine the status of their health and their intention to return to work, before concluding that the employee has abandoned their employment (J Searle v Moly Mines Limited [2008] AIRCFB 1088).

In cases of genuine abandonment of employee working hours, the employment relationship is deemed to have been brought to an end at the initiative of the employee, and their last day of employment would be the last day that they attended work before their unauthorised absence. The employee would be entitled to be paid for all work performed up to and including their last shift, plus any applicable entitlements, such as accrued but untaken annual leave.

Where contact is made with an employee during their period of unauthorised absence, and the employee is unable to provide suitable evidence to explain their absence, such as a medical certificate, then the matter should be dealt with in accordance the employers disciplinary procedure.

by: Lily Horn

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