job abandonment, absence, tardiness, employment lawyers

Job Abandonment Ontario: Being Absent, or Late

Job abandonment refers to a situation where an employee stops showing up to work as expected, without approval from the employer. In these situations, the employer may conclude that the employee abandoned their position. But not all situations where an employee disappears or is tardy amount to job abandonment.

What is the Legal Test for Job Abandonment?

In Nagpal v. IBM Canada Ltd., 2019 ONSC 4547, the legal test for job abandonment was summarized as follows:

  • Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

Where an employee is deemed to have abandoned their job, they are not entitled to any notice or severance. As such, there is a high burden on the employer to demonstrate that the employee abandoned his/her position.

Further, the legal test is highly contextual and turns on the specific facts of each case. As such, there is no set amount of time that an unexcused absence or tardiness will automatically amount to job abandonment.

There are numerous factors that impact a finding of job abandonment. For instance, there may be a variety of reasons the employee is absent, including legislated or agreed-upon leaves from work, health complications, disability, miscommunication, and stress. An employer must be mindful of these reasons before taking the position that the employee abandoned their job.

What Is The Difference Between Job Abandonment and Resignation?

Where an employee is terminated for just cause, or voluntarily resigns from their position, s/he does not have the same entitlements if s/he had been dismissed without cause. That is why one of the main issues in job abandonment cases is usually whether the employee was terminated by the employer, or if the employee resigned.

Where an employee fails to show up to work without confirming with the employer, the employer may consider their absence to be a resignation. However, employers should make appropriate efforts before concluding an employee resigned. Otherwise, a court may find that the employee did not resign but was instead wrongfully dismissed.

It is also important to note that an employee may refuse to return to work for reasons such as a breach of their employment contract or a hostile work environment. In these situations, the employer may take the position that the employee abandoned their job. However, such circumstances may amount to the employee being constructively dismissed from their position.

Can an Employee with Unexplained Absences be Terminated for Cause?

Where an employer can establish job abandonment, it may terminate the employee for just cause. The legal question to ask in this situation is, did the employee willfully disobey the employer’s rules or policies?

In a 2005 case, an employee with 14 years of service was tasked with preparing her employer’s booth and materials for a trade show in Spain. The booth and materials never arrived from Canada to Spain, sparking a chain of heated emails. The employer disciplined the employee, including suspending her without pay. It further disciplined her by downsizing her office, demoting her, and removing her flex hours.

When the employee did not return to work, the employer took the position that it had just cause to terminate her as she abandoned her position.

The judge found that the evidence did not support a finding of just cause. Rather the employer breached the employment contract by the discipline it imposed. As such, the employee was found to be constructively dismissed, and awarded nine months pay in lieu of notice, with additional monetary compensation due to the employer’s conduct, which was described as “…unduly insensitive and perhaps designed with the hope that it could engineer a without-cost resignation of a long service senior employee.”

This case demonstrates the variety of legal issues that may arise in a case of job abandonment and the importance for employers and employees to seek legal advice.

The Impacts of COVID-19

The COVID-19 pandemic has had a drastic impact on the workplace. A common question we receive is where an employee refuses to return to work, does this amount to job abandonment?

The answer depends on the circumstances. For example,

  • Has the employer taken sufficient health and safety measures in the workplace?
  • Does the employee have restrictions for which s/he needs accommodation, such as a disability or child-care obligations?
  • Can the employee properly do his/her job while working from home?
  • Has the employee considered taking a job protected leave, such as the new infectious disease emergency leave?

An analysis into such factors will help assist in determining whether an employee abandoned their job by not returning to work.

Key Takeaways

During absences, employees should maintain an open line of communication with their employers. It is important to be familiar with and follow your employer’s rules and policies relating to absences and punctuality. If you feel that the employer made significant changes to your job that you disagree with, or are experiencing a hostile work environment, we recommend that you immediately seek legal advice to understand your rights.

Employers should request appropriate information and updates, remind employees of their obligations, and issue warnings as necessary. They should keep in mind their obligations under employment standards and human rights legislation and seek legal advice before making any final decisions on an employee’s job status.

Contact Us 

If you are an employer and are dealing with an employee who has unexplained absences, or an employee dealing with a hostile work environment or are being dismissed, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.