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As Ontario continues to re-open the economy and businesses increase operations, many employees will be requested to return to the workplace in the near future. However, not every employee may want to return to the workplace right now which may give risk to job or employment abandonment and result in a dismissal for cause.

WHAT IS JOB ABANDONMENT? 

Job abandonment, otherwise known as employment abandonment, generally occurs when an employee has a continued pattern of absences that indicates to their employer that they have resigned without formal notice.

Where a job is considered abandoned, the employee’s employment is considered to be terminated with cause and the employee will not be owed any termination entitlements, including notice of termination or severance pay. It is important to consider that if an employee abandons their job, they will also be disentitled to receive any wages for the missed time at work.

HOW DO YOU ASSESS WHETHER A JOB HAS BEEN ABANDONED IN ONTARIO?

Whether a job has been abandoned by an employee is determined on a case-by-case basis and the unique facts of the situation must be taken into consideration.

Once called back to the workplace, employees in Ontario are expected to return to work “within a reasonable amount of time” or pursuant to their specific workplace recall policy that provides additional benefits for returning.

If an employee chooses not to return to the workplace within a reasonable amount of time or as per the workplace return policy, then they may be considered to have abandoned their job.

An employer may begin their assessment of whether a job has been abandoned by considering whether a reasonable person would objectively view the employee’s actions and/or communications as a clear and unequivocal intention to abandon the executed employment contract.

Employers must also consider their respective policies in relation to unauthorized or unexplained absences and how they may impact claiming job abandonment by an employee. More specifically, if an employer has clear policies that have now been broken by the employee, this may support the employer’s claim of job abandonment.

RISKS OF TERMINATING EMPLOYMENT FOR JOB ABANDONMENT

Similar to any type of termination of employment for cause, the employer has a high threshold that they must meet in order to prove that the employee did, in fact, abandon their job.

As mentioned above, Ontario case law indicates that a finding of job abandonment is based on whether a reasonable person would consider the employee to have clearly and unequivocally resigned through their actions and/or communications leading up to the termination.

It is important to note that employers are obligated to reach out to employees in regards to any unexplained or unauthorized absences from work as well as to provide written warnings if absences are a regular occurrence. If an employer does not attempt to provide the above to an employee, it may impact their justification of job abandonment and termination for cause and could result in a finding of wrongful dismissal for the employee.

ARE JOB ABANDONMENT AND QUITTING CONSIDERED THE SAME?

If an employee abandons their job, this would be equivalent to resigning from their job. As such, a resignation will be reflected on the employee’s Record of Employment (“ROE”).

As mentioned above, this will also impact the employee’s eligibility for severance pay or notice of termination.

DOES JOB ABANDONMENT AFFECT AN EMPLOYEE’S ELIGIBILITY TO RECEIVE EMPLOYMENT INSURANCE?

Since job abandonment is considered to be equivalent to resignation, it is likely that the employee will be found ineligible and will not be able to receive employment insurance (“EI”) benefits.

If you have any questions in relation to job abandonment, or if you were subject to a recent termination for cause due to job abandonment or otherwise, we encourage you to reach out to us to discuss your options. Please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or khayward@sultanlawyers.com.


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