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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22976
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Employee on approved A/L from 16 July 2015, returning to

Customer Question

Employee on approved A/L from 16 July 2015, returning to work on 11 August. Employee was travelling to Tokelua for an unveiling.
The boat was delayed in its sailing from Samoa to Tokelau, and supposedly the boat has had three subsequently sailings rescheduled.
On 12 August the Employer left a message for the employees Emergency Contact (based in NZ). This person rung back and spoke to the Employer on the 13 August, the request was to get them to deliver a message to the employee and have the employee contact her employer regarding travel plans and return to work. There was further contact with the Emergency Contact person on 18 August who advised of rescheduled sailing times for boat from Tokelau to Samoa. There was still no contact from the employee to the employer.
Abandonment of Employment letter hand delivered to the employees Emergency Contact and sent to employees home address too on Friday, 28 August. Employee was asked to contact the employer by midday Monday, 31 August with an explanation. Employee was advised if her employer did not hear from her by midday Monday, 31 August that her employment is at risk of being terminated due to abandonment of employment.
The employee emailed her employer on Sunday (her sister telephoned her on Friday re urgency of contacting her employer). The employee apologised, citing she had been trying to reach her employer numerous times.
So next step - your advice would be appreciated. We are thinking it’s no longer a matter of abandonment of employment given the employee has emailed her employer. Now I feel its serious misconduct, and the grounds are:
- Unauthorised absence from your work from 11 August.
- Unplanned leave from 11 August.
- Not complying with terms of your employment agreement – good faith obligation to be open and communicative with her employer
- Informing her employer of any relevant matters which will impinge on your ability to do your role and attend work
Many thanks
Kaye Roberts
Submitted: 2 years ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 2 years ago.

The issue here may be whether her attempts to contact you were genuine. In addition, you would need to be satisfied that the reasons for the delay were correct, and that in fact she has not misrepresented the position with the return to New Zealand. There certainly is an issue with the unplanned leave, at my suggestion is that you should start an employment investigation to ascertain the truth of her statements about her inability to get a sailing back to New Zealand and inability to contact you. She does have obligations to keep you informed. If for example it was true that she could not return as planned because the boat was not available, then she also had an obligation to keep in touch and advise you of the delays. There are Internet providers in Tokelau, and there are also telephones. So she would need to provide evidence of the attempts to contact you. If in fact she did not try after the 11th August, then probably your best response is abandonment of employment. I expect that she is not yet back, and so you should tell her that you intend holding an investigation about the facts, and if you are unhappy with their explanation, then dismissal may be an option.