Job abandonment occurs when an employee has a pattern of unexcused or unauthorized absences which result in the employer deeming their job “abandoned” and the employee is therefore terminated. Usually, this will result in this dismissal being treated as a resignation as opposed to a termination, meaning the employee will receive no severance pay or notice of termination.
What is considered job abandonment in Ontario?
An assessment of whether a job has been abandoned is contextual and will take into account the particular facts of each situation. The question to ask in regard to job abandonment is: if viewed objectively, by a reasonable person, do the employee’s actions and words demonstrate a clear and unequivocal intention to abandon the contract of employment?
The clarity of an employer’s policies regarding absences will have a significant impact on the strength of an allegation of job abandonment. If an employer has a clear policy that the employee has breached, this will support a claim for job abandonment.
Additionally, any communication between the employer and employee will be instructive. If an employee continually stating they do not intend to abandon their job but are sick, and have provided documentation of their illness, it will be more challenging for an employer to show job abandonment. An employee who is absent from work for a valid reason such as an illness or personal loss should remain in contact with their employer throughout their time off in order to prevent any assertions that they have abandoned their position.
After an extended unjustified absence, if an employer tells an employee “if you don’t come in tomorrow you’re fired” and the employee still does not come in, this may be an indicator of job abandonment, depending upon the other relevant facts.
Employers are obligated to reach out to employees in regard to unexplained absences and should provide written warnings if absences are an ongoing issue. A failure to attempt contact with an absent employee will likely undermine an allegation of job abandonment.
How do human rights and job abandonment interact?
An issue of extended absence often arises in the context of illness or disability. In this case, if an employee is off of work because of illness or disability, an employer has a legal duty to accommodate, which supersedes any right to treat the employment as abandoned.
If an absence is linked to a protected characteristic under human rights legislation, such as disability, the employer must take all reasonable steps short of undue hardship to accommodate the employee. The employee has a corresponding duty to participate in the accommodation process.
If an employee does not participate in the accommodation process and has been absent from work, the employer must give them extensive opportunities to participate and be as sensitive as possible prior to asserting job abandonment. If an employee refuses to provide documentation or attend meetings or appointments, job abandonment may be found in that case.
What length of time establishes job abandonment?
There is no formula or a pre-determined amount of days or missed shifts which will render an employee’s job abandoned. As discussed above, it will really depend upon the circumstances, viewed in a fulsome manner. It will be more difficult for an employer to assert job abandonment if the absences have been over a short period, and it will be a stronger case of job abandonment if the absences have been ongoing over a prolonged period of time.
Has COVID-19 impacted job abandonment?
If an employee has been laid off because of COVID-19, is called back to work by their employer, and they refuse or do not show up to work, this is considered job abandonment. This would be contingent upon the employer having the proper health and safety measures in place in the workplace. So long as the employer is fulfilling all of their health and safety duties, even if an employee is uncomfortable if they do not come to work the employer can consider their job abandoned.
This is to be distinguished from a situation where an employee has contracted COVID-19, is quarantining or is taking care of a sick family member. With the proper documentation and communication with their employer, this should not be treated as job abandonment.
Does job abandonment impact eligibility for Employment Insurance?
When an employee abandons their job, this would be considered a resignation and would be reflected in their Record of Employment, which is used to apply for EI. If the end of employment is characterized as a resignation, the employee will likely be found ineligible, and will not be able to access EI benefits.
Is job abandonment the same as quitting?
Legally, and in terms of an employee’s entitlements to EI and other benefits as well as severance pay or termination pay, job abandonment has the same effect as quitting. Job abandonment means an employee’s actions, in not reporting to work, indicates an intention to resign and the employer is allowed to treat it as such. Whereas a resignation is express and explicit, job abandonment is implied through an employee’s actions. The end result is, however, the same.
If you are an employee who is facing an issue related to job abandonment, you should contact an employment lawyer for an assessment of your case. We offer a free 30 minute phone consultation.
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