Are you an employer who just learned that one of your employees has not shown up to work in a while? Did that employee communicate with his or her manager about this absence? Have calls and emails to the employee gone unanswered? Depending on the answers to these questions, you may (or may not) be dealing a case of job abandonment.
Job abandonment occurs when an employee:
(a) fails to report for work as required;
(b) exhibits an intention of not returning to work; and
(c) does not notify the employer of his or her intention to call it quits.
Alleging is one thing, proving another
Employers facing a potential job abandonment need to tread carefully – there are no easy answers here. Rushing to dismiss an employee you think has abandoned his or her job can end badly.
While you may believe you have cause for termination – and can therefore dismiss the employee without providing any notice or payment (severance) in lieu of notice – your former employee may allege they’ve been wrongfully dismissed. If that happens, a court will take a contextual approach to the employee’s situation and consider the specific facts and circumstances of his or her individual case.
There is no exact period of absence that will provide just cause for terminating an employee. In some cases, a single absence may be sufficient and in others even multiple absences may not be enough to dismiss. There may also be some cases where the employee has a reasonable explanation for the absence such as illness or bereavement. When all is said and done, it falls on the employer to prove job abandonment and satisfy the burden of proof in the appropriate forum.
The legal test
The BC Supreme Court, in Pereira v. The Business Depot Ltd., emphasized that it is an implied term of every employment contract that an employee attend at work, and that the employee is only excused from that obligation where he or she has the employer’s permission or is unable to report for work. The Court noted that abandonment occurs where that implied term is breached by the employee demonstrating an intention to no longer be bound by the employment contract and therefore constitutes a repudiation of the employment contract by the employee. In such a case, the employer is then entitled to accept that repudiation and treat the contract as being at an end (again, without having to pay severance).
In practical terms, the test boils down to whether, on an objective view of the facts and circumstances, a reasonable person would have understood from the employee’s utterances and conduct that he or she had abandoned the contract of employment. The courts will also consider any efforts the employer made to seek clarity from the employee prior to termination.
A stitch in time, saves nine
Terminating an employee’s employment based on an allegation of job abandonment can sometimes prove to be a costly mistake. If you suspect an employee has abandoned their position, we encourage you to speak to an employment lawyer before taking any steps to ending the employment relationship. A little due diligence can go a long way!
Have questions about an employee’s absence? Contact us!
NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.