Job abandonment is a defence employers attempt to use to refute allegations of wrongful dismissal. The circumstances that give rise to this often related to an employees’ inability to return to work due to harassment in the workplace, a poisoned work environment, family emergency or as a result of illness.
But how long is too long to be away from work?
The courts have placed a high burden on employers who attempt to establish job abandonment. Unfortunately, there is no “rule of thumb” when it comes to absences. Each case must be determined on the context in which the absences occurred and how often the employee was absent.
The legal test for job abandonment was set out in Assouline v. Ogivar Inc., [1991] B.C.J. No. 3419. Assouline states that in order to make this determination, one must ask if a reasonable person would find the actions of the employee to be an indication, unequivocally, of resignation.
But what happens if you are suffering from a disability or illness restricting your ability to work? The following case details the dangers of ignoring policy and procedure in relation to a disability-related workplace absence.
In the case of Betts v. IBM Ltd, 2015 ONSC 5298, the Plaintiff, Betts, was suffering from depression and attempting to receive short-term benefits. In the meantime, however, the Plaintiff failed to submit any necessary documentation to support his application for short-term benefits, did not attend work for over eight months and even failed to return after IBM issued him several written warnings regarding his absences from the workplace. The Plaintiff was often visiting his girlfriend in another province during this time as well. IBM eventually took the position that the Plaintiff resigned, and the court agreed. The court specifically indicated that IBM’s five letters sent to the Plaintiff over the course of 6 months indicating that he returns to work or submit the appropriate documents for short-term benefits, “could not have been clearer”, and that as a result, a reasonable person would conclude that the Plaintiff did not intend to return to work.
It is important to note that employees have a positive obligation to comply with policies and procedures in relation to any disability-related absence from work. Failure to comply could result in job abandonment.
In the alternative, the case of Fitzgibbons v. Westpres Publications Ltd., 1983 CarswellBC 403 (B.C. S.C.) the court took a different approach. In this case, the employee was absent from work due to medical reasons for several months. The employer alleged that the employee had failed to keep in contact with them during her leave and therefore she had abandoned her job. The employee only had contact with her employer through her lawyer. In the end, the court decided that other factors need to be taken into consideration including the employees’ health issues, behaviour and other reasonable explanations to make a proper determination. As a result, it was determined that the Plaintiff had not abandoned her job.
Overall, it is important to review policies and procedures with respect to any prolonged absences from work. An initial note provided to your employer indicating you are on a leave for an undetermined amount of time may not be sufficient. Ensure you are keeping in contact and updating your employer regarding your condition on a regular basis to avoid any job abandonment allegations.
If you have been accused of job abandonment, contact Monkhouse Law today for a free 30-minute phone consultation.
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