Abandonment occurs where the words or actions of an employee, viewed objectively, would lead a reasonable person to conclude that the employee had abandoned the contract of employment. Job abandonment reveals the intention of the employee to no longer be bound by the employment contract and consequently results in that contract being repudiated. Once the employee abandons the employment relationship, the employer likewise is no longer bound by that relationship. Abandonment is functionally the same as a resignation, with the difference being that abandonment is implicit and a resignation explicit. For the employee, this means they lose their entitlement to termination notice and / or termination pay.
Case Study: Betts v. IBM Canada Ltd., 2015 ONSC 5298
This case involved an employee seeking wrongful dismissal damages and an employer seeking summary judgment to the effect that the employee abandoned his employment and consequently was not entitled to damages. The employee was 35 years old at the end of his employment and had been with the employer for fifteen years – a rather substantial portion of his life.
The employee originally worked in Nova Scotia before he was transferred in 2002 to the province of New Brunswick. However, he frequently visited the province of Ontario to teach at the employer’s office in Markham and to visit his fiancée who lived in Mississauga. In 2013, the employee moved from New Brunswick to Ontario to live full-time with his fiancée. The employee made this decision without informing his employer.
Prior to the move, the employee also suffered from very serious depression. The employee testified that his symptoms became unbearable and forced him to stop reporting to work in October 2013, one month prior to his move to Ontario.
His employer did not automatically treat his failure to appear to work as a resignation or abandonment. Instead, the employer provided him with a series of five letters setting out his options and deadlines to return to work. The employer unilaterally provided many extensions to these deadlines despite being under no obligation under law to do so.
After five letters and 8 months of absenteeism, the employer decided to treat the employee’s refusal to return to work as a voluntary resignation. The employer relied on a number of objective factors (recall that the test for abandonment is an objective one) to support their decision, including:
- a) the employee’s failure to report to work and fulfill his employment obligations for over 8 months; and,
- b) a voluntary and undisclosed relocation from New Brunswick to Ontario coupled with a lack of intention to return to New Brunswick for work.
Holding
The motion judge agreed with the employer. Although there is no doubt the employee suffered from depression, he was nevertheless aware of his responsibilities and what was expected of him. The employer sent numerous letters advising the employee of his options and even extended the courtesy of extensions to return to work. The motion judge drew a comparison between the employee’s unilateral decision to relocate to Ontario and a hypothetical situation where the employer had changed the terms of the employee’s employment and forced him to relocate to a new province as a condition of continued employment. The latter would be a constructive dismissal. Why, asked the motion judge, would the former not produce the same result?
In the end, the motion judge held that the employee had indeed abandoned his employment. As a consequence, the employee’s claim for wrongful dismissal damages was dismissed.
Interestingly, the motion judge found in obiter that if the employee had not abandoned his employment and had indeed been terminated he would have been entitled to 10 months’ pay in lieu of notice – an amount resembling approximately $50,000 in damages. Not only did the employee lose out on these damages, they were also ordered to pay to the employer $42,500 as legal costs. Abandonment can potentially be a costly mistake for an employee – in this case, it certainly was.