Abandoned your Job in Ontario: Resigned or Fired?
An employer can terminate an employee for job abandonment if the employee has been absent from work for a long period of time. However, the employer must show that the employee intended to abandon the position which is analyzed based on a contextual approach. An abandonment case is specific to the facts of that particular employer-employee relationship.
Job abandonment is a complicated issue that could lead to financial loss. An Employment lawyer might be able help you protect your rights and limitations on damages
Employees who take time off for a valid cause risk being accused of job desertion and dismissed. In addition, sometimes the termination occurs without notice or severance pay which is illegal. Some legitimate circumstances in which an employee may be absent from work are:
- Disability
- Sickness
- Maternity/parental leave
- Religious observance
- Loss of a loved one
- Stress
- Vacation
- Hostile Work Environment
Employment Standards Act
Employers and employees must consult the Employment Standards Act to determine what leaves are available. Besides, an employment contract may provide a more generous length and/or amount of leave periods than the Act. The abandonment of an employee is specific to the facts of the employer-employee relationship.
The main issue in abandonment cases is whether the employee resigned or was fired by the employer? A court will determine that the employee has quit their job when there is:
1) A resignation is when an employee tells their employer they’re quitting; and
2) Some action on the part of the employee to carry out that intention
For example, the court has held that an employee’s failure to communicate with her employer directly during her medically justified leave of absence did not justify termination. Her lawyer contacted her employer on her behalf, according to the evidence. In conclusion, an employee’s willful disobedience is just cause for termination.
Past examples of employee conduct that indicated a resignation include:
- When an employee fails to return to work after giving notice of an intention to quit, has cleaned out their desk, and left the keys behind
- If an employee states their intention to quit and then requests their Employment
Insurance Record of Employment (ROE) Form
An employee who accepts termination or severance pay is no longer eligible for recall to the workplace.
If you have been terminated from your position or cannot return to work, speak with a lawyer. Above all, an employer cannot fire an employee without evidence that the employee intended to abandon their position.
As an employee, make sure that you understand your company’s rules and policies regarding job absences. Try to also maintain adequate communication with your employer about plans for upcoming absences. In contrast, employers should document all situations of prolonged employee absences, maintain regular contact, and issue warnings.
We highly discourage anyone from seeking out legal advice through this article. This article only provides general information and should you require assistance, please contact us to book a free initial consultation 905-366-0202 or through our website here.
