Canada: When Is a Job Considered Abandoned?

By Brittany Taylor © Rudner Law May 28, 2021
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​Most Canadian employers have, at some point, had to navigate a situation where an employee needs to take time away from the workplace for medical reasons. Unlike other leaves, such as parental leave or sabbatical, medical leaves will often not have a predetermined end date. As a result, employers often find themselves asking a number of questions, such as: "When will they be able to return?", "How will I manage the work they normally do in the meantime?" and "At what point do we consider the relationship to be at an end?" 

As with many things in employment law, the question of when the employment relationship will terminate in circumstances where an employee is on an extended leave does not have a simple answer. In these situations, two of the ways in which the employment relationship can come to an end are: 1) through frustration of the contract of employment or 2) where the employee abandons their job.

We have written about frustration of contract in previous posts, which occurs when there is no reasonable likelihood that an employee will be able to return to work in the foreseeable future. In these cases, employees forfeit their entitlement to common law reasonable notice, but may still have statutory entitlements under the Employment Standards Act, 2000.

Abandonment of employment occurs when it is clear that an employee has no intention of returning to the workplace. The legal consequences of abandonment are the same as if the employee had resigned from the position.

However, the question remains: when will an employee be found to have abandoned the employment? In the recent decision of Hettrick v. Triple F Paving, the Ontario Superior Court of Justice dealt with this often-asked question.

The employee was 73 years old with 21 years of service with her employer at the time that she commenced a medical leave of absence.

The employer requested a medical note from the employee, which the employee obtained but, for unknown reasons, did not provide to her employer. Two years later, the employee reached out to her employer to indicate that she was ready to return to work on a gradual basis. The employer took the position that the employee had abandoned her employment due to her failure to provide medical documentation in support of her medical leave.

The court did not agree; it concluded that the employee had not clearly and unequivocally indicated an intention to abandon employment. Although the employer had requested a medical note, at no point was the employee advised that this medical note was required in order to authorize her request for a medical leave. In fact, when the employee asked the employer to confirm if any additional information was required to process her leave request, the employer simply responded "Sounds great to me."

The employer also failed to advise the employee of the consequences of her not providing the requested medical documentation. Although the employer sent a follow-up letter to the employee, the only consequence that was identified should the employee fail to provide the medical note was that the employer "would have to advise the Canada Revenue Agency that the record of employment is 'to be cancelled for lack of verification.'"

There was no evidence of any further attempts by the employer to obtain the medical documentation, inquire as to the status of the employee's medical leave or whether she still intended to return to work. Nor did the employer advise the employee at any time that she had abandoned her position or provide a warning that her position would be considered to be abandoned if she did not take action.

Although the employee had also failed to communicate with the employer during her leave, this did not, on its own, indicate an intention to abandon her employment. This was particularly true given that, at the time that she had requested the medical leave, she had "specifically communicated … her desire to return to her position once well." At no time during her medical leave had she indicated that her position in this regard had changed.

While this has never been an easy or simple threshold for an employer to meet, the court in Hettrick established a very high bar for an employer to prove job abandonment. The court made it clear that if there is any confusion or doubt as to whether an employee has abandoned employment, it is the responsibility of the employer to clarify with the employee whether he or she has resigned from the position.

The court awarded the employee an 18-month reasonable notice period. Due to the employee's age, the court also found that she had no duty to mitigate her damages.

Key Takeaways

This case clearly illustrates the importance of taking a proactive role when dealing with employees who are on a leave of absence. Rather than waiting to hear from employees when—or if—their circumstances change, employers should require regular medical updates from employees while they are off work. This allows the employer to remain apprised of the status of an employee's restrictions and limitations and continually assess whether it is possible to accommodate the employee in the workplace.

When an employee fails to provide the medical documentation requested, an employer should provide clear warnings to the employee about the consequences of continued failure. This includes, where appropriate, warning the employee that if he or she fails to respond by a set deadline, the employee will be deemed to have abandoned employment. The situation in Hettrick could have been easily addressed with clear communication on the employer's part about what information was required, at what time, and the consequences for failing to do so.

Brittany Taylor is an attorney with Rudner Law in Markham, Ontario. © 2021 Rudner Law. All rights reserved. Reposted with permission of Lexology.

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