Job abandonment occurs when an employee fails to show up to work as expected, and is deemed by the employer to have abandoned their post
THE CONTRACT OF EMPLOYMENT
The Level of Abandonment
Accordingly, the employer can avoid paying any severance as if the employee had resigned. However, there must be an unequivocal indication of the employee’s intention to abandon a position before the employer can be relieved of their obligations. The test is whether, viewing the circumstances objectively, a reasonable person would have understood from the employee’s words and actions that they had abandoned the contract of employment. Only then can the employer be relieved of their obligations.Given the particular facts of a case, an employer may actually have a duty to clarify the situation with an employee prior to termination. See Pereira v. Business Depot Ltd. (2011), 93 C.C.E.L. (3d) 74 (B.C.C.A.) and Koos v. A & A Customs Brokers Ltd. (2009), 73 C.C.E.L. (3d) 236 (B.C.S.C.). An action that rises to the level of abandonment in one case may not equal abandonment in another. There is no hardline rule for the allowable length of an unexcused absence from work. For example, in one case the courts weighed the fact that an employee was willfully disobedient of a direct order to be present on a given day for an important sale. In another case, the employee was on medical leave.
The employee did not communicate directly with her employer during this medical leave, but her lawyer was communicating on her behalf. This did not count as job abandonment. The courts will generally take health issues and reasonable explanations for absences into consideration when determining if an employee has abandoned a job. Employers should be careful of prematurely treating employees as abandoning their jobs. The employee can challenge the employer and claim they have been wrongfully dismissed. Employers should take reasonable steps to demonstrate that they attempted to contact the employee to warn them about the consequences of failing to report to work without a legitimate excuse. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice with an employment issue, please contact the experts at Stacey Ball – Employment Lawyer in Toronto.
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
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