Employee who stops reporting for work

Can an absent employee be assumed to have quit?

Brian Johnston
Question: If an employee stops coming to work, how long before we can assume the employee has quit? If we decide to fire the employee, do we owe any notice?

Answer: It is dangerous to assume an employee has quit simply because the employee stops coming to work. If you assume incorrectly, the employee can say there was a wrongful dismissal, thereby entitling the employee to the usual amount of severance and notice.

An employer has the right to dismiss an employee for cause but it is the employee who has the right to quit. An employer cannot “deem” someone to have quit. However, an employer can assume from a particular set of facts that an employee has quit.

To constitute a resignation, there must be words and/or conduct objectively reflecting an intention to resign. These circumstances must be clear and unequivocal, but there does not have to be a written resignation.

A prolonged absence from work can be considered objective evidence of repudiation of the employment relationship. However, courts will allow considerable leeway to the employee if there is justification for the absence, thereby countering any intention to quit. In most cases, if an employee was merely absent for a day, even without any justification, it would be difficult to say the employee quit. However, absence for a week without justifiable excuse could be said to be conduct of an employee who abandoned the job. There is no clear answer to the question “how long?”

In Fichter v. Mann, the employee was involved in a workplace altercation on a Wednesday and did not report to work for the remainder of the week. On the following Monday, the employer took the position that, by failing to report, the employee had repudiated his employment contract. The court held there was no repudiation and the employee was dismissed without cause. The evidence was the employer knew the employee had been injured in the fight, had gone to the hospital and had never indicated any intention to abandon employment.

If an employee does not attend work as scheduled, the employer should follow up with the employee directly by calling or writing to assess why the employee is absent. There may be some justifiable reason (such as illness, family problems or bereavement leave). An employer should not assume an employee has quit just because the employee has not attended work.

In Polo v. Calgary (City), the employee left his job after a dispute with his supervisor. The employer wrote to the employee informing him if he did not return to work, he would be deemed to have resigned. The employee did not return. The court held in the circumstances the employee had “unilaterally terminated” his employment and was not dismissed as the employee alleged.

Certainly, some of the confusion associated with how long an employee can be off work without a justifiable excuse can be resolved through the development of a workplace policy. The policy can provide that an employee who is away from work without justifiable excuse may be subject to discipline up to and including discharge. The policy can also provide that if an employee is absent in those circumstances for a specified number of days, the employee is considered to have quit. Since the employee will be expected to be familiar with the policy, in the absence of any justifiable reason, the evidence of absence in excess of the limitation would be objective evidence supporting a resignation.

The failure of an employee to attend work without justification can be cause in itself to dismiss. If there is cause, no notice is required. Therefore, to be safe, an employer who assumes an employee has quit because the employee has stopped coming to work could also communicate to the employee that his failure to attend work is also cause for dismissal.

For more information see:

Fichter v. Mann, 2002 CarswellSask 741 (Sask. Q.B.)

Polo v. Calgary (City), 1992 CarswellAlta 463 (Alta. Q.B.)

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected]

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