Surplus Brokers Ltd v Armstrong [2020] NZEmpC 131 - abandonment argument rejected

The Employment Court upheld the substance of Neil Armstrong's ERA success. The employer argued that the employment had ended by abandonment rather than dismissal, but the Court was not satisfied that the facts supported that conclusion.

The Authority result

Mr Armstrong was a casual employee who succeeded in the Authority on his claim that the employer had unjustifiably brought the employment relationship to an end during an engagement. The Authority also made associated remedial and penalty orders.

The abandonment argument

Surplus Brokers contended that Mr Armstrong had abandoned his employment. Abandonment is not established merely because an employee is absent or communication is imperfect. The employer must have proper grounds for concluding that the employee intended permanently to cease the employment relationship.

Why the challenge failed

The Court was not satisfied that the employer had made adequate enquiries or had a proper evidential basis to conclude that Mr Armstrong intended to abandon the relationship. The evidence remained consistent with him being willing to accept future work.

Why this case matters

Employers should be cautious before treating silence or absence as resignation by abandonment. The safer course is to make clear, reasonable enquiries and give the employee an opportunity to explain their intentions before concluding the relationship has ended.

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Source: Employment Court judgment and related public material.