Job abandonment in Ontario: What employees need to know

Job abandonment in Ontario is a complex issue that can lead to serious consequences for both employees and employers.

When an employee stops showing up to work without notice, it’s often assumed they’ve voluntarily resigned. However, it’s not always so clear-cut.

In this blog, we’ll break down what job abandonment means, how it can impact termination and severance, and what both parties should do to navigate this tricky situation.

What is job abandonment in Ontario?

In Ontario, job abandonment occurs when an employee fails to communicate their absence or return to work over an extended period.

Employers may interpret this as the worker quitting, meaning they’re no longer entitled to Ontario severance pay or other termination rights.

Before concluding that an employee has abandoned their job, there are specific steps companies should follow.

Signs of job abandonment

Job abandonment isn’t a one-size-fits-all scenario; it depends on the unique facts of each case.

Here are some common signs that may indicate job abandonment:

• Unexplained absences for multiple days
• No response to the employer’s attempts to reach out
• Employee seen working elsewhere while still employed
• A pattern of not showing up or informing the employer

These signs alone don’t always amount to abandonment, especially if the employee had a valid reason for being away, like illness or an emergency.

Employer responsibilities in job abandonment cases

Employers must proceed carefully with job abandonment cases to avoid potential legal issues.

In Ontario, it’s essential for employers to:

• Make multiple attempts to contact the absent employee, using phone, email, or other reasonable means.
• Document each attempt to reach the individual and any response they receive.
• Provide the employee with a chance to explain their absence before assuming abandonment.

Important: Terminating an employee without clear evidence of abandonment may lead to wrongful dismissal claims, especially if the absence was due to protected reasons, like illness or family leave.

WATCH: Employment lawyer Lior Samfiru breaks down everything you need to know about wrongful dismissals on an episode of the Employment Law Show.

Employee rights and job abandonment

For employees in Ontario, it’s crucial to maintain open communication with your employer if you aren’t able to attend work.

Failing to explain prolonged absences could put you at risk of being deemed to have abandoned your job, which could mean losing out on severance pay and eligibility for Employment Insurance (EI) in Ontario.

If you’re an employee facing challenges that make it difficult to work, consider these steps:

• Notify your employer of your absence as soon as possible
• Stay in touch during your leave and provide any required documentation (e.g., medical notes)
• Request accommodation if you’re dealing with a health issue or disability

Human rights and job abandonment

Employers in Ontario have a legal duty to accommodate employees experiencing medical issues, disabilities, or other protected grounds under human rights legislation.

Job abandonment can’t simply be assumed if an absence is connected to a protected ground.

In these cases, the employer should work with the employee to find solutions, such as temporary leave or adjustments to job duties.

Job abandonment vs. resignation: Understanding the difference

While job abandonment and resignation may have similar effects, they are different situations in Ontario.

• Job abandonment occurs when an employee’s prolonged absence and lack of communication imply they no longer intend to return to work.
• Resignation is an express decision by the employee to leave their position.

In both cases, the employer may not owe severance or termination pay, but resignation must be clear and voluntary to avoid misunderstandings.

Constructive dismissal

Constructive dismissal can add another layer to this discussion.

In Ontario, constructive dismissal occurs when an employee resigns not by choice, but because their job has changed so drastically (e.g., a demotion, reduction in hours, or a toxic work environment) that they feel they have no other reasonable option but to leave.

In these cases, an employee might resign, but legally it’s considered a dismissal because they were effectively forced out.

Unlike job abandonment, constructive dismissal may entitle the employee to full severance — as much as 24 months’ pay.

• Calculate your severance: Use the Ontario Severance Pay Calculator

Understanding these differences is key, as the wrong classification could lead to significant financial and legal consequences.

If you believe you’re facing a constructive dismissal or have been deemed to have abandoned your job, consult with an employment lawyer at Samfiru Tumarkin LLP to understand your rights and the best course of action.

SEE ALSO
• What Ontarians need to know about ‘notice of resignation’
• Do I get severance if I quit?
• WATCH: Job abandonment and remote work – Employment lawyer on CityNews

What should employers avoid?

Employers should avoid rushing to conclude job abandonment.

Missteps in handling job abandonment can lead to costly legal disputes. Employers should be cautious to:

• Avoid pressuring the employee for an immediate response without considering extenuating circumstances.
• Ensure they have a clear company policy on absences, to reduce confusion over what counts as abandonment.
• Seek legal advice before termination, especially if the employee’s absence may be due to a human rights-protected reason.

How long does it take to establish job abandonment?

Ontario law doesn’t specify a set number of days of absence that constitutes job abandonment.

The court often considers whether a “reasonable person” would view the employee’s actions as intent to quit.

Employers should assess each case individually and avoid making assumptions based solely on the length of absence.

Talk to an employment lawyer

Both employees and employers can benefit from speaking to an Ontario employment lawyer to understand their rights and responsibilities.

If you’re an employee who believes you’ve been wrongfully dismissed due to an absence misunderstanding, or an employer considering termination based on job abandonment, reach out to Samfiru Tumarkin LLP.

Our experienced employment lawyers can provide clear advice, so you understand your options.

Don’t leave your rights to chance — contact us today for a consultation!