It is not uncommon for an employee to leave their job and stop attending the workplace. However, even though job abandonment is relatively frequent, there is still a lot of mystery around its legal implications in the workplace.

This blog seeks to provide some clarity to this important employment law issue. First, we discuss what is job abandonment, then we look at whether job abandonment is the same thing as quitting or resigning from a job, whether job abandonment can be constructive dismissal and what should an employer do if an employee abandons their job.

What is Job Abandonment?

Job abandonment occurs when an employee stops attending the workplace for an extended period of time without notice. The employee does not provide an explanation or reason for their absence from work to the employer, nor do they respond to the employer when the employer attempts to contact them to communicate with the employee about their nonattendance at the workplace.

There is no fixed amount of time that must pass before an employer can be confident that the employee has abandoned their job. For example, in some instances it could be as little as several missed shifts. This determination would be driven by each situation’s unique set of circumstances. For example, here are several factors that would be looked at by Ontario judges to determine if the employee’s job was in fact abandoned using employment law principles:

• how long was the employee not attending work;
• what type of job did the employee have;
• were there any workplace policies in regards to workplace attendance;
• has the employer attempted to contact the employee and have those attempts not been successful;
• has the employee engaged in this type of behaviour before;
• if the employee has engaged in this type of behaviour before, has the employer given the employee a warning about nonattendance; and,
• whether the employee is already working at another workplace despite remaining on the employer’s present payroll.

If the employee has truly abandoned their job with the employer, the employer is allowed to treat the abandonment as “voluntary resignation” and the employee is therefore not entitled to termination or severance pay.

What is the Difference Between Job Abandonment and Voluntary Resignation?

Job abandonment and voluntary resignation are not equivalent in employment law in Ontario. However, these terms are sometimes used interchangeably. In the case of job abandonment, the employee simply stops attending the workplace. There is no notice to the employer related to the employee’s absence. The employer generally attempts to try to communicate with the employee related to their nonattendance, but in many cases, these attempts at communication go unanswered by the employee. In cases of job abandonment, the employer will be able to treat the employee’s job abandonment as voluntary resignation and will not provide to the employee termination or severance pay.

In the case of a true voluntary resignation, a resignation must:

1. must be freely and unequivocally provided by the employee to the employer; and
2. must be accepted by the employer.

Until the employer has accepted that offer or the resignation period has expired, the voluntary resignation is not finalized nor is the employment relationship terminated. If the resignation is voluntary, the employee will not be entitled to termination or severance pay.

So, in both cases, if the employee voluntarily resigned or the employee has abandoned their job, the employee is not entitled to termination or severance pay. Job abandonment is not true voluntary resignation on the part of the employee, but the employer is able to treat the abandonment as if the employee voluntarily resigned. To determine if a resignation or abandonment was voluntarily made (and accepted by the employer in cases of voluntary resignation), all the surrounding circumstances should be assessed contextually. If the resignation or abandonment is ultimately not found to be valid and the employer took steps to enforce it or dismissed the employee, the employer may be at risk of litigation or compensating the employee for wrongful dismissal.

However, there is a qualification in respect of being entitled to severance pay under Ontario’s Employment Standards Act, 2000 (“ESA”) related to voluntary resignation. If the employer has provided the employee with a working notice under the ESA, and the employee resigns during the statutory notice period upon providing the employer with two weeks’ notice, then the employee will still be entitled to severance pay provided the severance pay entitlement criteria as set out in the ESA are met.

Can Job Abandonment Actually be Constructive Dismissal?

Constructive dismissal happens when the employee’s fundamental terms of employment are changed unilaterally by the employer. Generally, the terms of employment should be the important aspects of the employment contract or employment agreement. Changes to the employment agreement that are too small or that occur to less important terms in the agreement will not trigger constructive dismissal.

Abandonment can be a “cover” for constructive dismissal – that is, an employer can claim that the employee has abandoned their job when, in fact, the employee’s departure or nonattendance at the workplace occurred as a direct result of the unilateral changes to fundamental terms and conditions in the employment relationship made by the employer. In this situation, an employee’s employment is impacted to the point where it would be unreasonable to stay and accept the fundamental changes to the employment relationship. Common examples include a reduction in pay or benefits, a change in the employee’s job responsibilities or duties, an increase or decrease in work hours or workload, a transfer to a new workplace location, etc. As a result of these unilateral changes made to the employment relationship by the employer, the employee leaves their employment via “abandonment.”

Once a claim for constructive dismissal has been made, the employee will generally claim common law and statutory damages in a wrongful dismissal lawsuit. The employee may be entitled to severance pay and / or termination pay. Depending on the circumstances, the employee may also be entitled to punitive and general damages for discrimination, harassment or bad faith.

What about human rights?

Employers are obligated to ensure that their workplace is free from harassment and bullying. They have a duty to investigate complaints about workplace harassment made by an employee. Also, employers have a duty to accommodate their employees related to protected ground as set out in Ontario’s Human Rights Code, 1990 (“Code”). The Code prohibits employers from discriminating against employees based on various grounds, including disability, race or ethnicity, sexual orientation, family status, etc.

One of the worst things that an employer can do is ignore complaints of workplace bullying, harassment or discrimination from an employee. And this is especially true if an employee then goes on to “abandon” their job. Similarly to abandonment acting as a cover for constructive dismissal, abandonment can also act as a cover when the employer has failed to address the employee’s concerns related to human rights and discrimination at the workplace. Failing to address these issues can greatly increase an employer’s risk of litigation. An employment lawyer can help employers deal with issues in the workplace by providing legal advice, preparing various policies, correspondence or other documentation, investigating the complaint, helping to negotiate a resolution to these issues, etc.

What Should an Employer do if an Employee Abandons Their Job?

There are several steps that an employer should undertake if they suspect an employee has abandoned their job. Employers should typically engage in the following if they feel that an employee may have abandonment their job:

1. An employer should attempt to contact the employee in order to determine the reason for their absence from the workplace. The employer should attempt to contact the employee using multiple communication channels, such as phone, text, email and letter.
2. An employer should not pressure an employee to “resign” in cases of an ostensible job abandonment situation. Any resignation should be given freely and voluntarily by the employee.
3. An employer should review the circumstances that led to the employee’s job abandonment to see if they can determine whether the employee’s job abandonment was voluntary and not a result of constructive dismissal, workplace harassment, discrimination or human rights issues, etc.
4. An employer should look for possible causes for the employee to abandon their job, such as illness, a serious medical condition, mental health problems, an accident or personal crisis, family caregiving responsibilities or other issues.
5. An employer should ensure that they record all their attempts at communication with the employee.

These actions can help the employer determine if the employee’s nonattendance from the workplace is actually job abandonment and lessen the employer’s litigation risk relating to a possible wrongful dismissal claim by the employee.

How Can Zeilikman Law Help?

Approaching an employment lawyer will be very helpful to both employers and employees when there are employment law issues surrounding job abandonment. The legal analysis of job abandonment is fact driven. Employment lawyers like the ones at Zeilikman Law can assist both employers and employees by reviewing the facts of their own unique situation in order to help them determine what the next best steps are to take given what the law states.

If our readers would like more information about this issue or other related employment law topics such as voluntary resignation, please look at our blogs entitled:

• Consequences and Questions Regarding Voluntary Resignation in Employment Law
• What Should an Employer Do When an Employee Resigns?
• 3 Legal Issues to Watch Out for When Employment Ends

Employers and employees can contact our office at (905) 417-2227 or online here to schedule their own confidential consultation with Zeilikman Law.