Did the employee abandon their employment, or was their employment terminated by the employer? That was an essential question in the recent British Columbia Supreme Court decision, Wong v Polynova Industries Inc. We canvassed job abandonment in an earlier blog post, and revisit it today for the purpose of discussing this case.

 

Mr. Wong’s Absence

This case concerned Mr. Wong, a long-time employee of Polynova Industries Inc. He was 70 years old and had been working full-time with the employer for 15 years. In March of 2020, Mr. Wong informed a supervisor that he was not feeling well and that he would remain at home for a few days to rest. Evidently, those few days were not sufficient, as Mr. Wong later informed that supervisor that he would be isolating at home for an additional two weeks.

At this point, according to the trial judge, there was a “complete failure to communicate between the parties for over two months.” Mr. Wong did not attempt to communicate with his employer until his return to work in June, 2020. For their part, the employer had attempted to reach out to Mr. Wong, with no success, via two phone calls.  However, when these phone calls failed, the employer made no further effort to reach him. They did not communicate with him in writing or in any other formal manner. They did not tell him that if he failed to return by a certain date, he could lose his job. While Mr. Wong was away, the employer actually hired somebody to perform Mr. Wong’s job. They considered this employee his replacement.

 

Mr. Wong’s Return to Work

To the employer’s surprise, Mr. Wong returned to work in June of 2020. He met with the President of his employer, the details of which were disputed between the parties. Mr. Wong suggested the employer was laying him off, while the employer suggested that Mr. Wong had abandoned his position. Notwithstanding the abandonment, they offered him a severance package allegedly as a goodwill gesture.

Ultimately, Mr. Wong was delivered a Record of Employment which indicated “Quit” as the reason for its issuance. Obviously, Mr. Wong disagreed. What, then, is the correct legal characterization of the termination of Mr. Wong’s employment? Had he abandoned his employment, or had the employer terminated him?

 

Job Abandonment or Termination?

In the employer’s opinion, Mr. Wong abandoned his employment by failing to come to work for over two months without ever telling the employer why.  In their view, this amounted to a repudiation of the employment contract – a repudiation they clearly accepted when they hired a replacement worker. Mr. Wong, on the other hand, argued that he was on an extended leave of absence and that his employer was aware of this.

The trial judge believed that the evidence supported Mr. Wong’s position that he did not intend to resign his position. At the same time, it was objectively reasonable for the employer to conclude he had abandoned his job. There was, therefore, a repudiation. The result ultimately depended on whether or not the employer actually accepted Mr. Wong’s repudiation of the contract. They argued they had, but according to the trial judge, they did not. The trial judge relied on a number of reasons in support of this finding:

  • a)   The employer failed to make formal inquiries of Mr. Wong;
  • b)   The employer made only modest efforts to contact him at all;
  • c)   The employer failed to terminate his health benefits;
  • d)   The employer failed to put Mr. Wong on notice that his job was at risk; and,
  • e)   The employer failed to issue a Record of Employment to Mr. Wong until June 10, 2020, which happened to be two months after the date the employer alleged to have accepted the repudiation.

The trial judge believed the reason the employer did not issue a Record of Employment to Mr. Wong earlier was because they had not, in fact, accepted his repudiation of the employment contract. For that reason, there was no job abandonment nor resignation. Mr. Wong, therefore, had been terminated without notice.

In deciding the appropriate period of reasonable notice, the trial judge concluded that Mr. Wong was entitled to 15 months’ notice. He was awarded $52,500 for breach of the employment contract.