With Ontario expected to lift the state-of-emergency shortly and the resumption of non-essential business operations, employers may begin to consider recalling employees who have been temporarily laid-off or placed on a deemed job-protected leave.

In Ontario, employees are expected to return to the workplace within a reasonable amount of time, or pursuant to a workplace recall policy, whichever provides for a greater benefit, following an employer’s recall to the workplace.

While employers may be permitted to consider employees who fail to return to the workplace as abandoning their employment, the liability associated with prematurely alleging job abandonment can be financially significant, particularly in relation to wrongful dismissal and the ensuing damages.

Defining “job abandonment”?

Job abandonment occurs where there is a clear intention by the employee to abandon their role without formally notifying the employer. Generally, this includes a pattern of consistently and consecutively failing to attend the workplace without authorization or without informing the employer of the intention of the absence.

While there is no pre-determined number of days and/or missed shifts that will render an employee to have abandoned their job, where an employee has a history of unexcused or unauthorized absences, the employer may, for example, deem the employee’s job as “abandoned”.

To determine whether an employee’s absence constitutes job abandonment, courts have taken a case-by-case approach, focusing on whether the employee’s actions and words demonstrate a clear and unequivocal intention to no longer be bound by the employment contract if viewed objectively by a reasonable person.

The courts have also made clear that where there is any confusion or doubt as to whether an employee has abandoned their position, the employer has an obligation to clarify with the employee whether or not they have resigned.

Consequences of job abandonment

Where an employer deems a job as abandoned, the employer may also deem that the employee has resigned or alternatively, elect to terminate the employment relationship.

While the employer may be permitted to treat the employee’s abandonment as justification for termination “for cause”, employers are encouraged to be mindful of the high threshold associated with this type of termination and the associated liability where “cause” is not justified.

Specifically, where a “for cause” termination arises, employees are automatically disentitled to termination entitlements, including in relation to notice and/or pay in lieu of notice.

Accordingly, the legal test to determine whether a “for cause” termination is substantiated requires the employer to demonstrate the following action of the employee:

• Serious misconduct;
• Habitual neglect of duty;
• Incompetence;
• Wilful disobedience;
• Conduct incompatible with duties; and/or
• Conduct prejudicial to the employer’s business.

Where an employer alleges a “for cause” termination, and this cannot be sufficiently demonstrated, the employee will be considered to be wrongfully dismissed, which may entitle the employee to additional damages as well as any entitlements owed to them under the employment contract or at law.

Legitimate absence, job abandonment and human rights

Some legitimate reasons in which an employee may be absent from work include, but are not limited to, the following:

• Disability;
• Medical/sickness leave;
• Stress;
• Maternity/parental leave; or
• Vacation.

Medical/sickness and disability-related leaves are common causes of extended absences from the workplace that may lead an employer to conclude that an employee has abandoned their position.

The duty to accommodate employees on a medical/sickness leave or disability-related leave supersedes an employer’s ability to deem as job as abandoned. In this case, if the employee’s absence is related to a protect ground under applicable human rights legislation, such as Ontario’s Human Rights Code, the employer is required to take all reasonable steps to accommodate the employee to the point of undue hardship.

Specifically, employers are required to give employees the opportunity to participate in the accommodation process, and exert sensitivity and leniency prior to alleging that the employee abandoned their role. Failure to do so and pre-emptively deem an employee as abandoning their job can give rise to significant financial compensation, including in relation to lost wages, general damages, and reinstatement.

Takeaways and best practices

Employers are encouraged to take a proactive approach when dealing with employee absences. Generally, this will include, but is not limited to, the following action:

• Documenting the matter, including by recording the employee’s absences;
• Maintaining regular contact with the employee when absent, including by requesting updated documentation as required; and
• Issuing warnings related to the absences as appropriate.

Further, employers are also encouraged to provide employees with clear policies and to set out expectations regarding absences from the workplace to ensure due diligence.