Unexplained Absences and Tardiness: When Does It Become Job Abandonment?

What constitutes job abandonment?

Job abandonment is when an employee persistently refuses to attend work or explain their absence.

In order for an employer to terminate an employee for job abandonment, the employee’s intention to abandon their position must be made clear. There is no specific length of time stipulated within the employment legislation in Ontario that constitutes job abandonment.

Job abandonment and Resignation

Some employers may say an employee abandoned their job and has resigned. In this instance, the employer have to prove that the resignation was clear and unequivocal. Ontario Courts, in Nagpal v IBM Canada Ltd., 2019 ONSC 4547, established that  the test for job abandonment is “whether the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract”.

In Nagpal, the employee, who had worked for IBM for over two decades, became ill and took a leave of absence, during which he received short term disability (STD) benefits under a company policy. After a few months, the administrator of the disability plan denied the plaintiff further benefits. Although the employee disagreed with the decision, he did not appeal it, but also did not return to work.  IBM took the position that he must return to work or, pursuant to its STD policy, he would be deemed to have resigned.  The employee refused to return to work and retained a lawyer who stated, emphatically, that the employee did not wish to resign and intended to return to work when he was able to do so.  Nevertheless, IBM followed its policy and alleged that the employee had resigned. The Court found that the employee had not abandoned his position and awarded him wrongful dismissal damages.

Job Abandonment and Just Cause for Termination

Being frequently absent or late for work usually does not justify a just cause termination because a closer look into the specific factors of a situation is often necessary. The test most frequently applied when determining whether just cause exists in relation to job abandonment is simple. You must determine whether the employee willfully disobeyed the company policies or employer’s specific rules. Other factors that may be relevant include whether the reason for the absence seems reasonable, how honest the employee was about their absence, whether their absence prejudiced the company, past warnings regarding absences or tardiness, seniority and length of service of the employee, and the seriousness of the incident(s).

In Aeichele v. Jim Pattison Industries Ltd. [1992] B.C.J. No. 1952 (S.C.), the employee was specifically told that they could not miss work on the day of an important sale. The employer made it clear that if the employee was absent on this day, it would lead to his termination. The employee missed work anyway and was terminated for just cause. In this case, the court found that the employer’s clear instructions were an important factor when determining whether there was just cause for the termination.

In Riley v. Crown Trust Company, [1977] A.J. No. 606 (S.C. (T.D.)), although the employee was frequently late, his tardiness only became a serious issue after his position changed to one of more seniority. This was a key factor in this case, as the employer believed the employee’s tardiness was now setting a bad example in the workplace, as he was now in a position of seniority. He was given two warnings regarding being late, but when no changes were made and the behaviour continued, he was terminated with just cause.

The COVID-19 Emergency

The issue of absences has gained additional prominence because of the pandemic.  Many workplaces remain open because they are considered to be essential services under the government’s emergency declaration.  

Recent amendments to the Employment Standards Act now require an employer to allow unpaid leave for employees affected by circumstances related to the pandemic:  e.g., being personally ill or in quarantine, or having to care for a sick relative. The employee will be required, after the fact, to provide reasonable documentation, but the employer cannot insist on a medical certificate.

A more difficult question arises when employees of such a workplace are not covered by the above circumstances, but simply want to stay away because they are concerned about possible exposure to infection.  Employers are urged to respond to such concerns in a sensitive manner and put in place safeguards to minimize the risk of infection. In that situation, it will be a matter of judgment whether an employee can justify staying away.  You should seek advice from an employment lawyer for an assessment of your specific situation.  

Next steps for employers or employees

As an employer, it is essential that your policies and practices are laid out in a clear manner for employees to understand. You must take reasonable steps to be clear about any absences or tardiness that may be a concern and ensure that you do your due diligence in trying to reach an employee when they are not to be found. If tardiness or unexplained absences are an ongoing issue, you should provide employees with written warnings. If the situation escalates, and you wish to terminate the employee based on these circumstances, you must be certain that their intent was to not return to work in order for it to be just cause.

As an employee, an understanding of your company’s rules and policies is important to consider when evaluating whether your absences could be classified as job abandonment. In addition, it is important to maintain adequate communication with your employer with regard to your intention and plans for any upcoming absences.

Are you an employee or employer with an employment issue regarding job abandonment? Learn more about our team or contact us for a free 30 minute phone consultation.

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