Most employers have, at some point or another, experienced situations where an employee has left work due to an illness, injury, or vacation for instance but the employee fails to return to work and does not maintain contact to explain the continuing absence. Without adequate explanation or cooperation from the employee, employers may have no other option but to treat the job as abandoned.
What is Job Abandonment?
Abandonment of employment arises when it is clear that an employee has no intention of returning to work. For example, job abandonment may exist in situations where an employee has been absent from work without an explanation, fails to participate in processes required to return to work after an absence, or fails to meet fundamental job duties without an explanation. The actions and/or statements of the employee, viewed objectively, must clearly demonstrate an intention to no longer be bound by the employment contract.
Job Abandonment v. Resignation – What’s the Difference?
Unlike situations involving employee resignation, job abandonment does not involve the employee expressly stating that they intend to end the employment relationship by communicating “I quit” for example. Rather, asserting job abandonment as a basis for justifying termination requires employers to rely on the employee’s behaviors or a collection of statements to conclude the employee has no intention of continuing employment. The law clearly establishes the question that must be asked by employers when relying on job abandonment is whether a reasonable person, in all the circumstances, would conclude that the employee has no intention of continuing work.
What are the Risks and Legal Consequences of Job Abandonment?
The legal consequences of job abandonment are the same as if the employee had resigned from their position in that employers can dismiss the employee without providing any notice or payment in lieu of notice (severance). Having said this, employers have a high threshold to meet in order to successfully establish job abandonment and a high degree of liability risk. Employers may be faced with a claim of wrongful dismissal or discrimination and may be held liable for damages including wrongful dismissal, moral, punitive, and human rights damages.
It is important to keep in mind employers are obligated to make efforts to contact employees to obtain an explanation in relation to any unexplained or unauthorized absences from work. Employers should make repeated efforts to understand the employee’s failure to attend work or meet key job requirements before treating the job as abandoned.
Employers should be cautious not to assert job abandonment where:
· Reasonable efforts to contact the employee or provide necessary accommodations have not been made;
· The employee is absent on a job protected statutory leave relating to an injury or illness; or
· The employee is participating in return to work activities under applicable workers’ compensation legislation.
If you have questions about job abandonment or if you were terminated for cause due to job abandonment, contact us to discuss.
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