Life can be unpredictable, and sometimes things happen to prevent you from attending work for a few days, maybe even weeks.
Perhaps you were injured in an accident. Perhaps your residence got flooded. Or perhaps you've had an argument with your employer and are cooling off at home.
In situations like these, an employer may give you verbal or written notice that you "abandoned" your job. You remember signing an employment contract with a whole provision on "abandonment" and are scared what might happen.
What is "abandonment" and when does it occur? And what can you do about it?
An often-cited case in our province on this issue is Pereira v. Business Depot Ltd., 2009 BCSC 1178. In paragraph 29, abandonment was described as follows:
It is an implied term of every employment contract that an employee attend at work, and that he is only excused from that obligation where he has the employer's permission or is unable to report for work. Abandonment occurs where that implied term is breached by the employee. Abandonment demonstrates an intention to no longer be bound by the employment contract and therefore constitutes a repudiation of the employment contract by the employee.
In essence, as an employee you have an implied duty to report for work unless:
a) you have the clear permission from your employer; or
b) there is some compelling reason why you cannot show up for work
If you breach this implied duty, then you are saying (through your conduct) that you wish to end the employment relationship. The employer is then entitled to treat the employment contract as being at an end.
Employer Warning or Notice
So going back to our scenario, what should you do if you have been given a warning/notice by your employer about abandonment?
First of all, just because the employer says you abandoned, doesn't mean you actually have. Sometimes the contract will have specified when abandonment occurs (e.g. after 3 days of unexplained absence), but the ultimate legal test is whether the employee's words and actions, viewed objectively by a reasonable person, clearly indicate an intention to no longer be bound by the employment contract.
The issue of abandonment can be a very contentious one, and depending on how the issue is resolved, you may be looking at one of several outcomes:
1) keeping your job
2) termination without severance
3) termination with severance
As such you should be thinking about your next steps carefully (but promptly) and speak to an employment lawyer before deciding on a course of action.
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The preceding content is for informational purposes only and does not constitute legal or professional advice. To obtain such advice, please contact our offices directly.
About the author
Simon practices in the areas of employment law and litigation, including small claims litigation. He has represented clients in commercial litigation matters such as commercial lease disputes, and breach of contract cases. In addition to court proceedings, Simon has experience assisting clients in arbitration proceedings and negotiating settlement agreements. Learn more about Simon.
Last updated on July 20th, 2023 at 12:54 am