Facts: A 73-year old employee, who worked for the employer since 1996 and who performed the roles of receptionist, bookkeeper and office administrator, went on a medical leave of absence on September 29, 2015. The employer requested a medical certificate at this time. The employee did obtain a medical note from her physician dated November 27, 2015, which indicated that she was not well enough to return to work and that her return to work date was “indefinite”, but did not provide the letter to her employer due to her mental health state at the time.
On September 15, 2017, and September 25, 2017, the employee wrote the employer to advise that she could return to work on a graduated basis and with modified duties. The employer did not respond until November 6, 2017. The employer’s correspondence took the position that because the employee did not provide a medical note in 2015 in response to the employer’s request, she had abandoned her position.
Decision: The court concluded that the employee had not abandoned her position and was therefore entitled to a severance package of eighteen (18) months. Significantly, the court determined that the employer never specifically advised the employee that a medical certificate would be required in order for the medical leave to be approved. The employee asked the employer whether any additional information would be needed to process her request for medical leave, but the employer did not answer the question.
The court further concluded that at the time of the leave, the employee communicated to the employer that it was her intention to return to work when she was medically fit to do so.
In arriving at its decision, the court applied the objective test for job abandonment, as set out in Betts v. IBM Canada Ltd. in paragraph 57:
“[D]o the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract[?]”
Takeaway: This decision establishes a high threshold for an employer to prove that an employee has abandoned their job. The employer must make it clear to the employee that failure to comply with a reasonable request (such as providing a medical note) will result in the employer considering the employee to have abandoned their job. Even then, there is no guarantee that the employer will succeed in establishing job abandonment, in particular situations where an employee is on medical leave but has failed to provide proper medical documentation (or any medical documentation at all).
Employers can also follow up with employees on medical leave on a regular basis to obtain updated medical documentation about the employee’s prognosis. If the medical evidence indicates that the employee will not be able to return to work and perform the basic duties of their job, with or without accommodations, within the reasonably foreseeable future, their employer can take the position that the employment contract has been frustrated, and if the employer is successful, the employee would receive only their minimum entitlements under the Employment Standards Act, 2000. In this scenario, they would not be entitled to a reasonable notice period at common law.
If you have more questions related to employment law matters, please visit our website or contact Marty Rabinovitch at Devry Smith Frank LLP to discuss any questions regarding your rights and options. This blog was co-authored by Student-At-Law Amar Gill.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”