One morning you get an email from a colleague: Bill in accounting has not shown up for work for a week, never provided a note that he would be off work, and has not contacted the company at all during this period. In fact, Bill has been off sick several times, but did not tell anyone that he needed time off for illness.

The answer seems straightforward, doesn’t it? Bob missed work without approval. This means Bill has abandoned his job and resigned, and all that needs to be done is to finalize his departure.

Not so fast. Proceeding as though the employee has quit could create significant liability for an employer, both in terms of the employee’s legal entitlements and the employer’s reputation. Instead, an employer must take careful consideration of its next moves to create a defensible legal position. If carried out properly, a job abandonment may result in the employer being able to proceed as though the employee resigned, or even to dismiss the employee for cause.

Job abandonment vs resignation

Resignation occurs when the employee states that they do not want to continue to be employed by an employer. Resignation must be “clear and unequivocal” and accepted by the employer in order to be effective. The employee may retract a resignation, and the employer must accept this retraction, if it has not acted to fill the employee’s vacant role.

Conversely, job abandonment occurs when the employee does not attend work without advising the employer of a reason for their absence. Where resignation is an express act on the part of the employee, job abandonment must be inferred from the employee’s conduct.

An employer should not assume that an employee’s absence or lack of action is a resignation, and must receive positive confirmation that the employee has resigned. This can be either through the employee stating their intention to resign, or by the employee failing to provide requested information. Without this, the employer risks the employee claiming that the employer wrongfully dismissed them.

Dealing with the absent employee: The Bill situation

Despite not having advised the company why he is absent, the company still has obligations toward Bill. Bill’s absence may be due to an illness which has left him unable to communicate with the company. Ending Bill’s employment now could breach Bill’s rights under the governing human rights statute. Bill may then claim wrongful dismissal and a human rights breach.

The employer must take steps to confirm why Bill is away, and see if it can assist his return. The employer must strike a balance between getting the necessary information and avoiding receiving anything regarding Bill’s medical condition (if that is the basis for his absence). Obtaining information about Bill’s medical condition can negatively impact the employer’s operations in the longer term. If the employer later decides to dismiss Bill, and it is aware of his medical condition, Bill may assert that his dismissal was due to the employer’s bias against his condition. This can be difficult to defend against: it is easier to avoid liability altogether.

The employer can send Bill a letter requesting a reason for his absence, reminding him that he is on an unauthorized leave, and asking when he intends to return. The employee must receive this letter: this may be something that the employer later relies on to end the employment relationship. The letter should be sent both to the employee’s email and via registered mail to the employee’s home address.

If Bill responds with a clear overview of the basis for his absence and intentions for his return, the employer can determine if Bill’s absence is culpable, and what it intends to do about it, such as discipline, dismissal, or simply letting the matter lie.

If Bill is off due to illness, he should provide the employer with a medical note confirming as much, as well as an expected return date. At this point, the employer has two options. It can wait for the return date indicated in the medical note, and when Bill returns, inquire as to any limitations he has and whether it needs to accommodate him. Alternatively, the employer can try to bring Bill back on a faster timeline by identifying any limitations and accommodating him.

Another potential outcome is that Bill does not respond to the employer’s correspondence. Here, the employer can take steps towards establishing that Bill has abandoned his role. If the employer can establish that Bill has received its correspondence, the employer can follow up, and include language in the subsequent letters outlining that Bill needs to respond to its request for information. This letter can also advise Bill that participating in this process is a part of his employee obligations and that failure to respond may be job abandonment or that the employer may rely on this conduct as a basis to dismiss him for cause. We regularly advise clients through this process to ensure that they strike the right balance between enforcing their rights and breaching those of the employee.

Only after Bill has failed to provide the necessary information, with clear warnings of the consequences for failing to do so, can the employer begin to take the position that Bill’s failure to attend work is a resignation, or that Bill’s refusal to respond to his employer’s correspondence is a basis to dismiss him for cause. 

Once this has been established, the employer can finalize Bill’s employment, including issuing a Record of Employment and paying any outstanding wages or vacation pay to Bill.

Even if all of this is done correctly Bill may still assert that he was wrongfully dismissed, and the employer following all the correct steps is not a guaranteed defence against this claim. However, they will be in a much stronger position if they have documentation of their actions and have followed the advice above.

Takeaways

An employee’s failure to attend work seems like the most simple thing to address. After all, the fundamental nature of the employment relationship is that the employee will work and the employer will pay them; if the employee doesn’t show up for work, then the relationship should be at an end, right?

The reality is more complex. An employee’s failure to attend work may be a resignation, but it may also be symptomatic of a need for accommodation and not culpable. Before acting, a wise employer will dig deeper and assess the situation and any legal obligations it may have. Not doing so can lead to a claim of wrongful dismissal and a claim for damages under a human rights statute. If the employee does not participate in this process, the employer may assert that the employee’s refusal to do so justified dismissing them for cause and proceed accordingly.

By following the correct steps, an employer can at the very least create a defensible position, showing that any decisions it made or actions it took were in line with the law.

By Geoffrey Lowe