At this time of year thoughts often turn to how much time we can take for our Christmas holiday.

Employees ask for leave, or fill out leave forms, giving the start and finish dates for leave. Employers agree this leave, then plan how to run the business with those who will be there when they open in the New Year.

There was a time when New Zealand closed down for much of January. Now, keeping a business open at this time is often a critical need.

Barbara, another of our Book Group, runs a recruitment and temping business. Last Christmas she was in difficulty when one of her key employees was four days late returning from holiday. He managed the temps, and she found when she returned that some clients had not had the workers they needed. He returned with no explanation beyond a sun tan, and a promise not to do it again.

At our Christmas sherry and cake evening, Barbara asked what she could do if this happened again.

Cyril, our public servant member, said his employment agreement had an abandonment-of-employment provision. If he was absent from work without notifying his employer for more than three consecutive days, he would be considered to have abandoned his employment. His employment agreement would terminate automatically at the end of the third day.

Barbara had never heard of this and asked Cyril if he could email the clause to her so she could add it to her employment agreements.

I broke in to tell them that it wasn’t that simple. Firstly, Barbara cannot just add a significant clause like that. She has to get employees’ agreement to the additional term, and I expect she could find that some do not agree. Secondly, even if there was an abandonment clause in the employment agreements, Barbara would still have to try to contact any employee who appeared to have abandoned their employment, unless it was very clear that the employee had in fact abandoned their employment.

As employers know, they must treat their employees with good faith. This includes trusting and placing confidence in them. The courts have held that the requirement for trust and confidence in the employment relationship means that if an employee’s intentions about returning to work are unclear, an employer should generally make inquiries of an employee who seems to have abandoned their employment, and not rely solely on an abandonment clause.

Such inquiries could be a letter to the employee’s home address or calling the employee’s phone number several times and leaving messages. The employee should be asked to provide, by a specified date, an explanation for the absence. It is sensible to say how the explanation is to be given – such as by letter or speaking to a named person.

Finally, in Barbara’s situation, in which there is no written abandonment provision, it might be possible to say one should be implied in the employment agreement. The courts have said this may happen where such a provision would be necessary to give business efficacy to the employment agreement. With Barbara’s key employee, that could be so. But even then, before deciding that he had abandoned his employment, she would be obliged to make inquiries and get him to clarify his situation.

Barbara believes she can make this work. But I noticed she suggested that she host our first Book Group meeting in 2006, five days after her office reopens.

By Penelope Ryder-Lewis, first published in The Dominion Post

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