Picture this: an employee is absent from work without explanation or authorization – it may be a sudden absence of a few days or, perhaps, the employee has failed to return from a leave of absence or vacation. Can an employer treat the employment relationship as at an end on the basis of job abandonment? Not so fast!
Let’s start with the basics. It is an implied term of every employment contract that an employee must attend work. When an employee fails to comply with that implied term, an employer may be entitled to treat the contract as at an end on the basis that the employee has abandoned their employment. In true cases of job abandonment, subject to the terms of the applicable employment contract, an employee is generally not entitled to any notice or pay in lieu.
It may surprise employers to learn that courts often find that employees have not abandoned their employment despite unexplained and unauthorized absences ranging from a few days to many months. The test to be applied is whether, viewing the circumstances objectively, a reasonable person would have understood the employee’s words or actions to have clearly and unequivocally indicated an intention to no longer be bound by the employment contract.
The courts have differentiated between irresponsible behaviour on the part of the employee, such as failing to communicate with their employer including by failing to return messages, and a clear and unequivocal intention to abandon their employment. Employers have been faulted for lackluster attempts to contact the absent employee and a lack of clear communication with respect to the expectation that the employee report to work and the consequences for failing to do so. To put it simply, an absent employee is not, on its own, sufficient to establish job abandonment.
With this in mind, here are five tips for employers dealing with circumstances of potential job abandonment:
1. Do not rely solely on the employee’s failure to communicate or attend at work. Instead, make genuine and frequent efforts to contact the employee. Utilize various methods (phone, e-mail, letter, etc.) and keep records of your attempts.
2. Consider whether the absence may relate to a protected characteristic such that human rights obligations could be engaged. If so, ensure that you have given thorough consideration to your accommodation obligations.
3. Clearly communicate to the employee:
- the date by which the employee is expected to either report to work or to provide a reasonable explanation and/or documentation to support the absence; and
- the consequences of failing to do so.
4. Do not rely solely on an attendance policy. However, do remind the employee of any applicable policy and the expectation to comply with such policy should they be in breach.
5. As always, contact your legal counsel to discuss the circumstances, appropriate next steps, potential human rights concerns, and to consider whether other termination doctrines, such as frustration of contract or resignation, may apply.