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July 2024 Update
Abandonment Of Employment Case Law Development:
A recent case of Boulger v LCD Services Limited highlights employer obligations around following a fair process when exercising its Abandonment of Employment clause.
Background
Ms Boulger worked for LCD Services Limited (LCD) as a secretary and personal assistant to LCD’s director. She applied to the Employment Relations Authority (the Authority) and claimed she had been unjustifiably disadvantaged by LCD failing to make KiwiSaver and PAYE payments properly during her employment. She also claimed LCD unjustifiably dismissed her by failing to follow a fair process when exercising its abandonment clause.
On 13 June 2022, Ms Boulger attended a meeting with LCD’s director to discuss concerns around her ability to conduct her work and dissatisfaction in the role. Ms Boulger became upset, so the director suggested she go home and consider whether she wanted to “do the job”. Although the director said they would try to resolve the matter the next day, Ms Boulger took extended sick leave from 14 June to 18 July, and provided LCD with a medical certificate which stated she was not fit to return until 4 July 2022. However, she would not return to work after taking sick leave. Three days after she was meant to return, LCD decided Ms Boulger had abandoned her employment, and terminated it on 7 July 2022. LCD immediately asked her to return her office keys and swipe card and changed the locks at its premises.
LCD’s abandonment clause was triggered if an employee became absent from work for a continuous period exceeding three days without notification to, or consent from, LCD. The Authority noted If LCD had contacted Ms Boulger, it would have learnt that she was still sick and would have received another medical certificate stating she could not return until 18 July.
The Authority also recommended the company implement a clear Bullying and Harassment Policy and Code of Conduct, and to establish a clear avenue for the resolution of complaints and investigations of bullying and harassment.
Read the full case and decision on our Case Law page, from the summary dated 5 July ⭢
For specialist advice in this area or any HR/ER related matters, please contact me at michaelp@cecc.org.nz.
Michael Prisk
HR/ER Business ConsultantI’m passionate about helping businesses build healthy, supportive workplaces where people thrive. From offering practical HR consultancy to running training sessions and sharing insights through blogs, I’m here to make HR simple and effective for our members.