Many companies have “No Call, No Show” procedures. And many companies, naturally, expect employees to show up for their scheduled timeslots. But should companies be so quick to identify an employee as “resigned” or as having committed “job abandonment” when they do not show up for work? The courts say “No”.
The Legal Test
The test for job abandonment was set out in Assouline v. Ogivar Inc. [1991] B.C.J. No. 3419. The test, specifically, is whether a reasonable person would find the actions of the employee to be indicative of resignation.
When examining whether an employee did indeed abandon his or her position, a court will evaluate factors surrounding the alleged abandonment- specifically, communication with the employer during the period of absence, warnings-written or other- that continued absence would result in disciplinary action up to and including termination, and factors which contributed to the absence or hindered communication between employer and employee.
Invisible Disabilities: A Factor to Consider
One factor which contributes to absences and lack of communication is a disability. Even where absences (sick leaves) have been frequent and not always with physician documentation, a dismissal on the basis of absence is unjust (See: Delorme v. Sakimay First Nation [2004] C.L.A.D. No. 487)
However, disabilities are not always obvious or brought to an employer’s attention. As per Koos v. A&A Contract Customs Brokers Ltd. [2009] B.C.J. No.857, an employer has a duty to look into the absence of an employee and to not immediately conclude that such actions are job abandonment.
If the employee is suffering from an “invisible disability”- that is, a mental and not physical ailment, it is not the employee’s duty to establish- that is, to inform the employer of this. Addressing this growing issue in their publication, “Advice to Unions and Employers Regarding Accommodation of “Invisible” Disabilities”, Black, Gropper & Company and Roper Greyell LLP specifically note that the employer is expected to investigate and then accommodate the disabled employee to the point of undue hardship.
The failure to identify an employee with just such a disability is one of the factors which ultimately resulted in liability for Westport Foods Ltd. in the case of Beggs v. Westport Foods Ltd. [2011] B.C.J. No. 249. In Beggs, the Plaintiff, unbeknownst to her employer, began suffering from depression following the destruction of her home by a fire.
Communication issues arose as her phone was out of service due to the fire. Westport attempted to contact Beggs to no avail. Eventually, it prepared an ROE for Beggs, indicating that she had resigned. One month later, Beggs obtained a doctor’s note stating that she should be off work, but at this point Westport had issued the ROE, and it was too late. At trial, it was found that Beggs had not resigned and she was awarded 11 months’ pay in lieu of notice. This amount was upheld on appeal.
General Principles
The general principle is that it is inappropriate for an employer to reach the conclusion that an absent employee has resigned- as per Cox v. Victoria Plywood Co-operative Association 1993 CanLII 2153 (BC SC). In Cox, a heated exchange- specifically noted as a “spontaneous outburst of anger”- and subsequent departure from the work premises was still insufficient to support a conclusion that the Plaintiff had resigned.
Advice for Employers
Before terminating an absent employee, it is important that you take the correct precautions and evaluate the situation and get a legal opinion. Reaching out, and ensuring that the absence is not for legitimate reasons is, as the cases above demonstrate, crucial to avoiding liability down the road. In order to save on legal costs and to protect yourself from the start, it is often a good idea to retain a lawyer.
Advice for Employees
If you have been terminated while on a legitimate absence, or due to your failure to report to work due to an illness or disability, you may have a legal remedy available to you.
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