May 7

What is Job Abandonment and what you can do about it?, Toronto Employment Lawyer

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Job abandonment is when an employee leaves work with the intention of not returning, typically asserted not when an employee indicates they are resigning but fails to return to work. While it is a related to the concept of resignation it is separate in that it occurs when the implied term of attending work is breached by the employee (see Pereira v. Business Depot Ltd., 2009 BCSC at para 29). After a certain amount of time the employer may be allowed to consider that individual to be no longer employed.

As stated in Betts v. IBM Canada Ltd., 2016 ONSC 2496 (CanLII) “While an actual resignation must be clear and unequivocal, the test for abandonment is similar to the test for resignation: do 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”?

One key takeaway from the caselaw is that miscommunications between the parties and/or evidence of an employer’s motivation to get rid of the employee will not amount to job abandonment. On the flip side however, employees have an obligation to comply with their employer’s reasonable requests and failing to do so could result in job abandonment. A failure on the part of the employer in proving job abandonment will result in liability for wrongful dismissal damages and could also call for human rights damages or punitive/aggravated damages depending on the circumstances.

In Misetich v. Value Village Stores Inc, 2016 HRTO 1229 (CanLII)., after lengthy communication regarding limitations on the employee’s ability to work a certain schedule, due to an injury requiring modified duties as well as elder care needs, the employee failed to come to the workplace and the employer asserted job abandonment. The tribunal in this instance found that the employment relationship was properly terminated due to the employee not providing the requisite information for the accommodation and subsequently not showing up to work, rather than a termination motivated by discrimination.

Likewise, in Iliescu v. Voicegenie Technologies Inc., 2009 CanLII 385 (CanLII) (upheld on appeal)  communication between an employer and employee led to the employer to terminate the employee for job abandonment. Mr. Iliescu refused to return to the workplace until all his criteria and concerns were addressed relating to a performance improvement plan, as well as an internal conflict he was having with his superior. The company did not agree to his ‘term’s and asked him to return to work. The employee did not. The company asserted job abandonment while the employee asserted he had been constructively dismissed. The Court determined that the employee had abandoned his position. The Court also went further and found that even if he had been constructively dismissed, he would have failed to ‘mitigate’ his damages by refusing to return to the workplace.

As an employer, one must seek to conduct business in a way that is fair and in good faith. In using job abandonment as an avenue for terminating an employee, an employer must have reasonable belief that the employee in question intended to discontinue their employment. Ensuring that communication is clear, and actions of both the employee and employer are deliberate in their purpose makes sure that there is no breakdown in the employment relationship which could be mischaracterized as job abandonment to the detriment of either party.

A breakdown in communication and the mischaracterization of actions taken by the employer and employee in 1276061 Ontario Limited v David James, 2016 CanLII 21813 (ON LRB), resulted in the employer unjustifiably assuming that the employee had abandoned his job. In actuality, Mr. James was not able to complete work that was designated for him and his team, and so he left a job site that his team was supposed to power-wash. It was this action of leaving the job site which his employer, 1276061 Ontario Limited (Fresh and Clean), deemed to be an act of abandonment. This action alone did not constitute as meeting the high bar the courts have set for an employer to deem one of their employees to have abandoned their job. There was no indication by this employee that he wished to discontinue his employment, nor did Mr. James’ absence from the job site indicate any significant message overall. The court deemed this to be an act of wrongful dismissal by the employer.

This case also speaks to the good faith in which the employer must act. Fresh and Clean was found to be searching for a way to discontinue their relationship with Mr. James, and in taking this avenue, they could have done so without paying him out.

As an employee it is important that you provide the necessary, appropriate information for why you are not able to come to the workplace as well as comply with your employer’s reasonable requests. If your employer is giving you a hard time, then it is imperative to consult with an employment lawyer to avoid relinquishing any rights.

As an employer it is crucial to paper the record if an employee is refusing unreasonably to return to work, and when dealing with a disability or some other human rights ground, it is important to be mindful that perhaps the lack of cooperativeness or attendance at work is being complicated by that human rights ground. If considering asserting job abandonment, it is key to get legal advice to ensure you will meet the requisite standard.

Contact Monkhouse Law today to discuss.

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