Job Abandonment in Ontario
With Ontario businesses slowly re-opening and expanding operations, many employees can expect to be returning to the workplace in upcoming weeks. Employees who had been temporarily laid off may find themselves being recalled to work. Not every employee may wish to return to work at this time— however, unexplained absences may lead to job abandonment in Ontario, and a subsequent dismissal.
What is Job Abandonment in Ontario?
Employment abandonment occurs when an employee takes steps to indicate they have resigned without formally notifying the employer. This includes consistently and consecutively failing to attend the workplace without informing the employer of the intention to be absent.
If the employer claims job abandonment, the employee is effectively dismissed for cause and disentitled from termination entitlements such as pay in lieu of notice. In the case of job abandonment, the employee is also not entitled to receive unpaid wages for missed shifts.
The Risks of Terminating Employment for Abandonment in Ontario
Employers must keep in mind that just cause has a high threshold and therefore, job abandonment is similarly difficult to prove. If the employer alleges just cause where there is none and fails to pay the employee their proper termination entitlements, the dismissal is considered wrongful, and entitles the employee to wrongful dismissal damages.
Ontario case law has determined that a finding of employment abandonment in Ontario is based on whether a reasonable person with regard to all the circumstances would consider the employee to have resigned through their actions. An employee’s intention to abandon their position should be clear.
Further risks are created by the fact that there is no clearly defined length of time when an unauthorized absence becomes an employment abandonment in Ontario.
An employer should also be mindful of whether an employee is taking a form of leave protected by Ontario’s Employment Standards Act or the Federal Canada Labour Code, as an inconsistent or unsupported allegation of employment abandonment can create liability for human rights damages.
Claiming Job Abandonment During Pandemic
With businesses slowly resuming operations, employers may soon begin sending out recall notices to employees who were temporarily laid off due to the COVID-19 pandemic. For Ontario businesses, an employee is expected to return to work after being recalled “within a reasonable amount of time” or pursuant to a workplace recall policy that provides a greater benefit. For federal businesses, a workplace recall policy must be followed first unless there is no policy, in which case the standard is also “within a reasonable amount of time”.
An employee who fails to return to work within a reasonable amount of time or pursuant to a workplace policy may be considered to have abandoned their employment.
However, considering the risks of prematurely alleging employment abandonment and the different legal interpretations which typically depend on individual facts, employers should seek legal advice prior to making any big decision, including whether an employee should be dismissed.
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