'Some employers don't want to follow up because they're happy to let sleeping dogs lie'
A worker abandoned her position when she declined to meet with her employer following a misunderstanding over whether she had quit, the Nova Scotia Labour Board has ruled in overturning an order to award the worker statutory termination pay.
The worker was a dental assistant at Windsor Dental Centre (WDC) in Windsor, NS, since 1989. Her job duties involved cleaning and sterilizing instruments, preparing the examination room for patients, and assisting the owner and other dentists with their work.
In 2016, WDC was purchased by a new owner who was also dentist and continued to operate it as before.
In January 2023, the provincial dental board issued new guidelines for sterilization, which required WDC to change some of their existing practices. The owner asked employees to read about the changes and held a staff meeting to discuss them.
However, the worker wasn’t following the guidelines relating to changing of scrubs and she told the owner she needed more time. She grew stressed and, on Jan. 25, she went on a medical leave of absence. She provided a doctor’s note stating that she wouldn’t be able to work from Jan. 27 to Feb. 28 due to illness. The worker’s husband emailed the owner on Jan. 27, asking for the worker’s record of employment (ROE), and the owner replied that the worker should write to her directly.
Owner believed worker was quitting
The worker spoke to WDC’s office manager and told her that she would be off work for a month, but the office manager advised the owner that the worker was quitting her job and would be leaving in early April.
The worker emailed the owner on Jan. 28 asking for her ROE “as soon as possible.” She wanted it so she could apply for employment insurance sickness benefits, but she didn’t mention this to the owner at the time. The owner said it would take two weeks to process it and believed that the worker was quitting.
Just over three weeks later, on Feb. 22, the worker contacted the owner to say that she was well enough to return to work “if you are OK with me coming back?” She added that she had reviewed the sterilization guidelines and would like to meet with the owner for an update.
The owner replied by email the next day, saying that the office manager had told her that the worker wasn’t coming back and, since she had requested an ROE, she thought she was quitting. She said WDC was busy and she was desperately looking for help, so had she hired a new employee. She said that she didn’t realize that the worker was coming back and “you didn’t talk to me at all.” She thanked the worker for her time with WDC.
The worker responded that she had requested an ROE for employment insurance sick benefits and hadn’t intended to resign. She felt that she had been “thrown away like garbage.”
Clarification of abandonment, resignation
It was a misstep for the owner to rely on secondhand information and assume that the worker had quit, according to Rick Dunlop, a labour and employment lawyer at Stewart McKelvey in Halifax.
“If someone doesn't come to work, it’s important to follow up in writing, because if you base it upon assumptions, that’s problematic for a variety of reasons,” he says. “You can't rely upon a rumour to suggest that someone abandoned their employment - it has to be relatively clear and objective, like with a resignation.”
When mental health issues are involved, it’s doubly important to clarify things directly with an absent employee, adds Dunlop.
“If there’s a mental disability that's causing the employee not to come to work and be unresponsive, then you're in a more difficult position, because you haven’t taken the bull by the horns to find out what's going on and if accommodation is needed,” he says.
The worker attempted to clarify her intentions to return to work and the owner requested a meeting to discuss the matter. The worker agreed, but her husband was worried about the worker’s mental state and thought that things were deteriorating with WDC’s owner.
Labour standards complaint
The worker filed a labour standards complaint on Feb. 24 and, on the day she was to meet with the owner, she sent an email saying that she had been advised that attending the meeting “may not be in my best interest.”
On Feb. 28, the owner asked the worker in an email to clarify her intentions, saying she needed to know if she wanted to work at WDC or not so she could tell the new dental assistant she was training. However, the worker didn’t respond, so the owner called and left a voice message saying the same thing.
The worker’s husband called the owner and said the worker couldn’t come back at that time due to a relapse of her stress “due to your email laying her off.” The owner explained again what the office manager told her and reiterated that she wanted to meet with the worker and see if she wanted to come back.
The owner didn’t hear from the worker and on March 29 she invited the worker to a farewell party for some colleagues. However, the worker didn’t respond.
Despite the initial misunderstanding, WDC did well to try to clarify things once the misunderstanding came to light, says Dunlop.
“There appeared to be miscommunication, but then the employer said, ‘Come and chat with me,’ and the worker refused,” he says. “If the employer had relied upon that initial email, maybe they wouldn't have won, but it went further and tried to confirm in writing, and it made it clear that it was asking if she wanted to come back - the employer wanted to have a discussion, and the worker refused to have that discussion.”
Job abandonment
The worker started work at another dental clinic in July. In response to the labour standards complaint, WDC maintained that the worker hadn’t been terminated, but she abandoned her position.
However, the Director of Labour Standards found that the worker had been terminated without cause and ordered WDC to pay the worker termination pay in lieu of statutory notice. WDC appealed the order.
Citing legal precedent, the Labour Board noted that abandonment is determined by whether a reasonable person would interpret an employee’s words and actions as indicating that they no longer intend to continue their employment.
The board found that WDC’s owner initially misunderstood the worker’s request for an ROE as a resignation, particularly given what the office manager told her. However, the owner made subsequent efforts to clarify the situation, including multiple emails and a phone call expressing her willingness to have the worker return to work, said the board.
The board noted the worker’s lack of engagement following the owner’s Feb. 28 email, including her decision not to attend the proposed meeting. There was no evidence to suggest that WDC terminated the worker’s employment, the board said.
No termination pay
The board allowed WDC’s appeal and rescinded the damage award ordered by the Director of Labour Standards. It concluded that the worker had abandoned her position and was therefore not entitled to termination pay under the Nova Scotia Labour Standards Code.
Employers sometimes fall short on the abandonment argument without that follow-up, says Dunlop.
“It’s tough [for employers] because sometimes you never hear from [the employee] and you just issue the ROE, and I think a lot of employers never hear back,” he says. “But sometimes where employers go wrong is if they do hear back, then they really have to jump on it and say, ‘Let's have a discussion about this,’” he says. “I suspect some employers don't want to follow up because maybe they're happy to let sleeping dogs lie – which is a strategic question that sometimes may make sense.”
However, WDC’s actions in this case are a good example of how an employer can effectively support an argument of job abandonment while maintaining clear and respectful communication, according to Dunlop.
“This case demonstrates the importance of communicating and having a record of it - but also, if you're going to have that record, you want it to show that you're being respectful and are trying to be solution-oriented,” he says. “It’s surprising how often employers cross the line, because it's too easy to send a text or an email that, upon reflection, you wish you hadn’t.”
