Many employers have or will face a situation where an employee has failed to appear for work with no communication or explanation. While it is understandable for an employer to jump to the conclusion that the employee has abandoned their position, it is far more difficult to rightfully establish that a true job abandonment has occurred than one might think. Employee absence is not the equivalent to employee abandonment. Missing a scheduled shift without valid reason may very well be grounds for progressive discipline, but on its own it would not hold up in a court of law as abandonment of a position. While continued employee absence with no communication and other clear behaviour may indeed be abandonment, an employer should tread carefully in dealing with these types of issues to avoid a wrongful dismissal. Of course, abandonment needs to be assessed on a case-by-case basis because each situation will have unique facts.

Abandonment is defined as conduct by an employee that clearly and unequivocally demonstrates a subjective (not objective) intention by the employee to desert his or her position. Abandonment may occur if an employee takes steps to show that they are leaving their position without formally resigning. Abandonment must indicate permanently leaving with no intention to return.  Employers are not permitted to deem abandonment on behalf of an employee, and they are not allowed to dictate what actions by an employee constitute abandonment or deem certain conduct such as absenteeism by an employee as the employee having abandoned their position. The threshold for abandonment is very high and the intention to do so must be expressly made clear by the employee that they truly wish to abandonment their position.

If an employer believes that an employee has abandoned their position, they may wish to officially terminate the employee’s employment with just cause. However, proving just cause is difficult especially when abandonment is claimed. When an employer terminates for just cause in a provincially regulated organization in Ontario there is generally no obligation to provide notice or pay in lieu of notice. Of course, there are exceptions to do this and willful misconduct must be examined by a court of law. Generally speaking, if an employer cannot prove this high threshold of just cause, then the termination could be considered a wrongful dismissal or constructive dismissal depending on the circumstances. This could result in an employer having to pay damages to an employee for not providing proper notice/entitlements or for causing a constructive dismissal. Incorrectly handling these kinds of situations can be very costly for an employer.

It is important to clarify that resignation is different than abandonment. If an employee resigns, they are not entitled to notice or pay in lieu of notice as the employment relationship has come to a true end by choice of the employee. However, if an employee abandons their position, then the employer still needs to show that there is just cause to be able to terminate the employment relationship without having to provide notice or pay in lieu of notice. Employee resignation can only be made when an employee clearly, unequivocally, voluntarily, without duress states that they have chosen on their own accord to resign from their position. An employer cannot tell an employee that they are resigning due to their actions. This increases the risk of a constructive dismissal. As abandonment is usually shown by behaviour only and resignation is shown by clear written or verbal communication, resignation is more black and white while abandonment can be more difficult to prove.

Before taking any steps towards termination based on abandonment it is important to contact an employment lawyer because once a step is taken, it cannot be taken back. Wrongful dismissals can be extremely costly for employers both financially and reputationally. Getting some proactive advice can save a lot of time and money as well as avoid a stressful situation. Our team of lawyers would be glad to assist employers in determining how to address these kinds of situations. Reach out to our firm at 705-268-6492 for assistance.