No easy answers when employees go missing

Dire circumstances – such as a missing airplane – call for sensitivity, support
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 04/07/2014

When the news first broke, people were stunned. How could an airplane just disappear? But as the days passed, reality set in and it became apparent the passengers and pilots on Malaysia flight 370 had truly vanished.

Austin-based Freescale Semiconductor had 20 employees — 12 from Malaysia and eight from China — on that flight who worked at facilities in their respective countries.

“It’s been a really tough weekend,” said spokesperson Jacey Zuniga in an Associated Press story after the news broke. “We’re really focused on our employees and their families and we’re watching the latest developments like everybody else, waiting to hear more concrete news.”

Whether it’s an airliner that disappears, a mine explosion or an employee who doesn’t return from his morning run, employers are faced with a challenging situation when an employee goes missing under dire circumstances.

Above all, employers should remember this type of situation is a human issue before it’s a human resources or legal issue, said Chris Andree, partner and national practice group leader in the employment and labour law group at Gowlings in Kitchener, Ont.

“How an employer behaves in this type of situation will send a strong message to existing employees, prospective employees, customers, suppliers, referral sources — whoever else that the business deals with, and so they need to be mindful of that,” he said.

“By focusing on process and legal rights, that can cause an employer to ignore those aspects of the situation which will leave a legacy far more costly than a few days’ wages or a temporary disruption of the business.”

From a legal perspective, a person is technically absent if she doesn’t give a sufficient explanation for not attending work, said Andree, and failure to do so is a breach of the duty of loyalty and fidelity, and may be a breach of policy. However, in a circumstance such as Malaysia flight 370, an employer should not follow the same course.

“We all know why the person is away and certainly it’s not the person’s fault... so the employer has to consider how to deal with this. And carefully,” he said.

“Typically, businesses do not need to act immediately to do backfill or replace that individual because the circumstances, at least in the first short period, are no different than if the person became seriously ill… or they suffered an injury like in a car accident.”

If the employer has a policy around absences, it should be willing to extend the courtesy or bend the rules for the missing employee to allow for paid absences, unpaid absences and continuing benefits, said Andree.

“Money issues tend to cause the employer to be perceived as insensitive, so (that includes) failure to pay, dealing with benefits, not providing whatever coverage they might be otherwise entitled to.”

This kind of situation is surprisingly common, especially in northern communities where employees often go out to hunt and don’t immediately return, said Glenn Tait, a partner at McLennan Ross in Yellowknife.

Prudent employers will try to contact the missing employee or find out what’s going on, and often the community organizes a search, he said.

Oftentimes, collective agreements provide for some type of special leave if a person is unable to report to work because of severe weather conditions, said Tait. Some agreements say if the employee doesn’t show up for work for a certain number of days and has not contacted her employer, she’s deemed to have abandoned her position.

“That gets around the argument about whether or not you’ve actually resigned your employment because the general law with respect to resignation is that there needs to be an objective and subjective intention to resign,” he said.

There could also be cases where an employee goes off on vacation and doesn’t come back.

“The first thing you’d want to do is try to contact the employee and find out what the situation is,” said Tait. “If you can’t get in touch with the employee, and if the situation drags on and if you truly don’t have any information then, at some point, the employer’s going to have to say, ‘Look, I’ve determined, I have no other conclusion to draw but that you’ve resigned your employment.’”

Careful with communications

Ideally, the employer should have a pre-organized crisis response team and critical incident management plan in place, according to Vicki Enns, clinical director and trainer at the Crisis and Trauma Resource Institute in Winnipeg.

“Having more than one person and having the right people leading the response is crucial to ensuring that the response is both ‘enough’ and not ‘too much.’”

The first step should be to find out the actual facts to avoid miscommunication and misinformation getting out to concerned people.

Once these are verified, the response team can decide what information to share at what time and how, she said.

Questions to consider include: What information do we give co-workers? Do we contact family? Who is the best person to contact family? Do we need counsellors?

An employer may also want to shut the office down for a day or two or have a group debriefing a few days after the incident. But it should not assume every employee will react the same way, said Enns.

“Some people will want to continue working as usual, others will be so impacted they are not able to work — be ready for a variety of responses. Give people information about what their options are for individual debriefing or counselling. If your organization has an EAP provider, make sure employees know how to access this service.”

Employee relations or employee management can vary depending on the situation, according to Alison Schofield, principal at Mercer in Toronto.

Even if you don’t feel the need to have a traumatic care intervention, an EAP provider can give advice on how to deal with people whose colleagues have gone missing, especially if it’s a more public situation, she said.

“You need to be careful about what kind of conversation goes on, and part of the reason to call in an EAP in is to manage that kind of chitchat, because you don’t necessarily want your workforce going out and talking to the press about it either.”

Employers should also be more flexible in dealing with co-workers who are coping with the news, and allow for informal or formal peer support, said Andree.

“This is not a time for employers to be watching the clock and saying, ‘I need you at your station or I need you at your desk,’ every moment from 8 am to 4:30 p.m. Those ad hoc gatherings of employees to support one another should be certainly allowed if not encouraged.”

As time passes and the situation becomes more static, the employer may consider temporary labour, said Andree. And eventually there will be a point where pay has to end.

“If it’s simply an absence and the employer has exhausted whatever paid leaves they might be willing to extend to the individual, the employer would be within its rights to cease the payment of wages,” he said.

But employers should be mindful of the impact on family.

“You would certainly want to give advance notice of the cessation of the pay and, at the same time, advise them of any other supports that might be available,” said Andree, such as life insurance benefits.

Once it’s apparent the employee is not coming back, there are a variety of steps involved, from hiring a replacement, dealing with the death certificate, generating a record of employment, contacting next of kin and the benefits plan provider, and dealing with the insurance company.

Often employers continue benefits for beneficiaries for a couple of years, said Schofield.

“Most employers try to act with some compassion and not too quickly on some of these things.”

Companies should also make sure they are prepared for the next time, said Tait.

“This is a good example of why you need to have succession plans in place because you cannot predict when somebody’s going to be on an airplane that’s going to crash.”

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