Oct 2

Unexplained Absences and Tardiness: When does it become job abandonment? Toronto Employment Lawyer


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What constitutes job abandonment?

In order for an employer to terminate an employee for job abandonment, which is considered termination for just cause, the employee’s intention to abandon their position must be made clear. As with most just cause arguments, the lines may be blurry. There is no specific length of time stipulated within the employment legislation in Ontario that constitutes as job abandonment.

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 was 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 behavior continued, he was terminated with just cause.

Next Steps

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? Contact Monkhouse Law today for a free 30-minute consultation.

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