By Makenzie Johnston.
In its recent decision in Hettrick v Triple F Paving Co Ltd, 2021 ONSC 208, the Ontario Superior Court of Justice considered whether an employee’s actions clearly and unequivocally indicated an intention to abandon her employment after taking a two year medical leave.
The plaintiff brought a summary judgment application against her employer, Triple F Paving Co. Ltd. (“Triple F”), for wrongful dismissal following a two-year long medical leave.
The plaintiff was a 73 year old office manager with 21 years of service. In September 2015, the plaintiff wrote to Triple F to request a stress-related medical leave of absence. The letter clearly communicated her desire and expectation to return to work when able. The letter indicated that she would be unable to work for four weeks or longer, depending on her response to treatment.
In response, Triple F delivered a Record of Employment with a Post-it note attached that read “Don’t forget to send/email the Doctor’s Note”. In October 2015, Triple F sent a follow up letter indicating that if the plaintiff did not provide a doctor’s note within 15 days, they would advise the Canada Revenue Agency that the Record of Employment is “to be cancelled for lack of verification”.
In November of 2015, the plaintiff obtained a doctor’s note indicating that she was not well enough to return to work for an indefinite period of time. Given her poor mental state at that time, the plaintiff took no steps to have the medical certificate delivered to Triple F.
Nearly two years later, the plaintiff was cleared to return to modified duties. At that time, the plaintiff advised Triple F of her willingness to return to work. In response, Triple F advised that because she did not provide a doctor’s note regarding her medical request in October 2015, Triple F concluded that she had abandoned her position and that there was no vacancy.
Summary Judgement Application
Triple F argued that they required a medical certificate to approve her medical leave. Triple F indicated that their continuous requests to the plaintiff went unanswered. When the plaintiff did not provide a medical certificate, Triple F concluded that plaintiff had abandoned her position. Triple F relied on the objective test for abandonment of employment as articulated by the Court in Betts v IBM Canada Ltd, 2015 ONSC 5298, which indicates at paragraph 57:
…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
On the other hand, the plaintiff argued that she did not abandon her position because she had clearly communicated her intent to resume her position when she requested the leave. The plaintiff relied on the Sutherland v Messengers International, 2018 ONSC 2703 decision, which states at paragraph 25 that where there is confusion or uncertainty over whether an employee abandoned his or her engagement, the onus is on the employer to clarify with the employee whether he or she quit.
The Court held that there was insufficient notice by Triple F to the plaintiff as to what would happen if she did not deliver a medical note. For example:
- Triple F did not specifically tell the plaintiff that a medical certificate was required in order to authorize her request for medical leave;
- Triple F did not attempt to clarify the status of the plaintiff’s medical leave;
- Triple F did not inquire whether the plaintiff’s intention to return to work had changed;
- Triple F did not suggest to the plaintiff that she had “abandoned” her position; and
- Triple F did not warn the plaintiff that they considered her position as being “abandoned”.
The Court concluded that Triple F failed to establish that the plaintiff’s words or conduct clearly and unequivocally indicated an intention to abandon her employment. The plaintiff clearly communicated her desire to return to work when able, and at no point in time did she resile from this position.
The Court went on to find that reasonable notice was 18 months and that at age 73 the plaintiff had no duty to mitigate.
Takeaway for Employers
This Ontario decision, while not binding in British Columbia, sets a high standard to prove job abandonment. It proves as a good reminder for employers to request the required documentation from their employees when they go on an approved leave, and to clearly outline the consequences of failing to provide the necessary documentation in writing.