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. Job abandonment is just caused by the employer to fire the employee. However, the employer must show that the employee intended to abandon the position which is analyzed based on a contextual approach. In this way, each abandonment case is determined on the specific facts of that particular employer-employee relationship.
Even employees who have legitimate reasons to explain their absences may be accused of job abandonment by their employer and terminated. 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:
- Maternity/parental leave
- Religious observance
- Loss of a loved one
- Hostile Work Environment
If there has been a breach of their employment contract
Employers and employees must consult the Employment Standards Act because it sets out guidelines for the number and length of leaves (i.e. emergency leave, maternity leave) which may lawfully be taken in a single year. Besides, an employment contract may provide a more generous length and/or amount of leave periods than the Act. If the employer has not terminated the employment relationship, any periods of inactive employment (such as, sick leave) count as periods during which an employee is continuously employed.
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 statement by the employee informing the employer of an intention to quit (or, in the absence of any statement, some act from which it may be inferred that the employee intended to quit); 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. It was shown that her lawyer contacted her employer on her behalf. The court will consider health issues and other legitimate reasons for leaving when determining whether the employee actually abandoned their job or was illegally terminated. In contrast, an employee’s willful disobedience will be considered just cause for the employer to terminate them.
Past examples of employee conduct which indicated a resignation include:
- If 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
Under section 67(5) of the Employment Standards Act, an employee who has accepted termination pay or severance pay shall be deemed to have abandoned the right to be recalled to the workplace.
You must consult a legal professional if you have been terminated from your position for job abandonment, or you have been unable to return to a hostile work environment. An employer cannot say that they thought you had resigned because you were absent for a long time without presenting evidence that you intended to abandon your position. Without evidence of your intention, the resignation will be deemed involuntarily and a termination. In such a case, you will likely be entitled to severance pay.
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.
Nothing in this article should be considered or relied on as legal advice or opinion. 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.