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Losing track of employees

If an employee disappears for a few days without any communication, is it job abandonment?

By Jeffrey R. Smith

Most employers know — or eventually find out — it’s difficult to fire an employee for just cause. Things have to be really bad to provide justification for terminating someone’s employment. This also seems to be the case if an employee disappears from the job. Job abandonment is something that can be easy for an employer to assume, but not easy to prove.

If an employee doesn’t show up for work for a few days without a reason or proper communication with the employer, is the employee abandoning her job? A few years ago, an employee of Staples Business Depot in British Columbia had to take a medical leave in order to receive treatment for a drug addiction in another town. It was agreed the employee would return to work after completing rehab and the employee would call the employer once he was back in town.

However, Staples didn’t hear from the employee for a couple of weeks after the completion of rehab and had no contact information, other than a friend who said he was no longer staying there. As it turned out, the employee had arrived back in town and was looking for a place to live. Eventually, with no word from the employee, the insurer cancelled his disability benefits and Staples followed by sending a letter to his last known address — the friend’s house — indicating it was assuming he had abandoned his job because he had disappeared with no point of contact.

As it turned out, the B.C. Supreme Court and Court of Appeal disagreed with the employer’s approach, both finding it shouldn’t have made the assumption of abandonment, since he had agreed to contact work once he was settled back in town. Two weeks wasn’t enough time to assume he wasn’t coming back, both courts ruled.

Another B.C. employee, this one at a custom broker, was embarrassed and humiliated by a verbal dressing-down by her manager in front of co-workers. She left work and saw a doctor, who faxed a note saying she needed a couple of weeks off work. The supervisor didn’t receive the fax and when she didn’t come back to work for a few days, he tried calling the employee. Several calls over the next several days didn’t get a response from the employee. After 10 days, the company wrote the employee indicating it was assuming job abandonment since she hadn’t responded. It was at that point the employee responded and explained about the doctor’s note. Though the employer didn’t accept the explanation by that time, a court found there was no abandonment.

While in both of the above cases the employee had a legitimate reason for being absent, both employees were lax in communicating with their employers. How long should an employer be strung along if an employee doesn’t keep in touch, or just ignores attempts at communication? In the second case, the court called the employee’s failure to respond “irresponsible,” but it maintained it was the employer’s responsibility to confirm the termination of the employment relationship. But how much should the employer be expected to do to confirm this if the employee is incommunicado? Should a failure to keep in touch with the employer when it’s necessary be considered a repudiation of the employment relationship?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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