The next in our “has my employee…?” series looks at whether an employee has abandoned their position. Again, in some circumstances, it may not be obvious. For example, what happens if a worker takes an extended break from work? Whether an employee has abandoned their position has implications, for instance, on whether the employee is owed termination entitlements.

This article looks at what constitutes abandonment and some of the implications. We also look at a recent decision of the Superior Court of Justice of Ontario, in which an employee claimed that she was wrongfully dismissed after taking extended medical leave. At the same time, the employer argued that she had not provided a doctor’s certificate and had abandoned her employment.

What constitutes abandonment?

Whether an employee has abandoned their position depends on whether the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate the employment contract binds an intention to no longer. As is often the case, the totality of the circumstances must be considered. 

In a medical leave context, there is case authority for the proposition that employees on medical leave are not immune to abandonment where they fail to follow employee policies and where there is no medical evidence available to support that the employee could not comply with these policies.

Why does it matter whether an employee has abandoned their position?

An employee abandoning their employment has different effects than an employer terminating an employee, so characterization is important. 

If an employer terminates an employee without just cause, they are entitled to reasonable notice or pay in lieu of notice. The employee might be entitled to other things, such as severance pay. Employees may also be entitled to retain benefits for the duration of the reasonable notice period and unpaid compensation, such as bonuses or commission. These do not apply if an employee has abandoned their employment.

Employee takes an extended medical leave of absence

In Hettrick v Triple F Paving Co. Ltd., the plaintiff employee was hired in 1996 as a receptionist, bookkeeper and office administrator for the defendant paving company located in Oakville. In 2015, she wrote to the operations manager to request a stress-related medical leave of absence. In this letter, the plaintiff stated that she would be unable to work for “4 weeks or longer”, but that she expected to be able to fulfil her duties upon recovery and return to work. She asked what additional information was needed to process the request, offering to obtain a doctor’s certificate.

A week later, she received a paycheque and her record of employment, with a post-it note saying, “Don’t forget to send/email the Doctor’s Note.” About another week later, the employer told her it still had not received the doctor’s note and that if she did not provide it within two weeks, the employer would need to advise the Canada Revenue Agency (CRA) that the record of employment would need to be cancelled.

A letter from the plaintiff’s doctor dated the following month confirmed that she was not presented well enough to return to work, but the plaintiff did not forward it to her employer due to her mental state at the time.

Employee seeks to return to work

About two years later, in 2017, the plaintiff wrote to the company’s president proposing a graduated return to work. About a month and a half later, the employer responded by saying that it had concluded that she had abandoned her position because she had not provided a doctor’s note. Furthermore, there were no vacant positions.

The plaintiff brought a claim for wrongful dismissal, arguing that she had not abandoned her position.

Court decides that the employee had not abandoned their position

Justice Miller found that the post-it note did not constitute a communication indicating that a medical certificate was required to approve the leave. Neither did the subsequent letter, which just indicated consequences regarding the CRA.

Her Honour held that the plaintiff had not abandoned her employment. The plaintiff had not clearly and unequivocally indicated an intention to abandon her employment. This was because when the plaintiff requested leave, she specifically communicated her desire to return. The employer did not inquire whether this intention had changed or warn that her position would be considered abandoned.

Employee was entitled to 18 months’ notice

The plaintiff asked for 24 months’ pay in lieu of notice, along with payment of bonuses and benefits. The defendant argued that damages should be limited to 18 months’ notice and should not include any bonus, which was discretionary.

Justice Miller applied the Bardal factors and decided on 18 months’ pay, noting that the plaintiff was 73 when her position was terminated and that she did not hold a management position. Her Honour agreed with the plaintiff that she was entitled to the bonus paid every year she worked for the company and was, therefore, an integral part of her annual salary. Finally, her Honour held that at age 73, the plaintiff had no duty to mitigate her loss. 

Justice Miller upheld the plaintiff’s claim and granted damages of almost $77,000. 

Contact Haynes Law Firm in Toronto for Guidance on Employee Termination

The team at Haynes Law Firm in Toronto helps employers in multiple industries to manage employer risk and reduce liability concerning employee terminations. We work with employers across the country to limit their exposure to legal claims stemming from poorly executed terminations. We also assist employees that have been terminated to ensure they receive maximum compensation and all eligible benefits from their employers.

Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. To discuss how our employment law team can assist you, please contact us online or call us at 416.593.2731.