THE EMPLOYERS' EDGE
Ontario Court Sets Sky High Bar for Job Abandonment
Although uncommon, from time to time employers may find themselves dealing with job abandonment. As the very recent decision of Hettrick v Triple F Paving illustrates, however, it is crucial to seek legal advice even in what may seem to be the clearest of cases.
The plaintiff in Triple F Paving, a 73-year old employee with over 20 years of service went off work on sick leave. Although she had medical documentation supporting her absence from the workplace, it was never provided to her employer. Two years later, she contacted her employer and requested a graduated return to work. The defendant employer took the position that she had abandoned her employment and refused her request.
The court found that the employer had not provided the employee with sufficient notice of the consequences of failing to provide the requested medical documentation and, as such, had not established that the employee’s conduct clearly and unequivocally indicated an intention to abandon her employment. As a result, the court awarded an 18 month reasonable notice period with no duty to mitigate.
The key takeaway for employers is the importance of regularly following up with employees who are off on leave for updated medical documentation and to explore whether there are accommodations that may be available to facilitate their return to the workplace. If no reasonable accommodations are available based on the medical documentation provided, and it is unlikely the employee will be able to return to work in any capacity in the foreseeable future, the employer may be able to take a frustration position which can significantly reduce liability.
If an employee is not willing to provide documentation substantiating their leave in a timely manner, ensure that the consequences of failing to do so are clearly outlined in writing. An employee’s failure to participate in the accommodation process may ultimately amount to job abandonment; however, that approach should only be taken after careful consideration, and, ideally, consultation with counsel.
The lawyers at CCPartners are available to assist you in all issues related to managing medical leave or accommodation in the workplace. Click HERE for a link to CCP’s COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud, or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.