Casual Legal: Absentee employees

By Maddison Croden
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

All employers, including municipalities, occasionally face situations in which an employee fails to come to work. An employee may not have returned to work as expected following an approved leave, refused to obey a return-to-work mandate, or simply stopped going to work.

What can a municipality do when an employee, without warning, ceases to perform the essential elements of their employment, such as showing up to work each day?

It is an implied term of an employee’s employment contract that the employee must perform the essential elements of their job, which typically include attendance at work, in some capacity. When an employee ceases to act in accordance with these obligations, they may be considered to have abandoned, and thereby effectively resigned from, their position. When an employee abandons their position of employment, the employee is not entitled to severance pay at the end of the relationship.

An employer must meet a fairly high threshold to successfully assert that an employee has abandoned their employment. The test for determining whether an employee has abandoned their employment is whether, viewing the circumstances objectively, a reasonable person would have understood from the employee’s words and actions that they had abandoned the contract of employment. There must be an unequivocal indication of an employee’s intention to abandon their position. Whether an employee’s actions meet this threshold is a factual determination, which must be made on a case-by-case basis. In some circumstances, a single absence may be sufficient to support an assertion of abandonment. In others, several absences or a pattern of absences may be required.

Some indicators that an employee may have abandoned their position of employment include:

• failure to attend at the workplace
• a unilateral relocation from the employee’s province of employment without the approval of the employer
• failure to comply with relevant policies relating to an employee’s absence from the workplace.

Where confusion or uncertainty arises over whether an employee has abandoned their employment, there may be an onus on the municipality, as employer, to clarify the circumstances with the employee. Further, it may be prudent for the employer asserting job abandonment to clearly set out the expectation that the employee is failing to meet, and what the consequence of failing to comply will be. For example, if an employee has, without reason, failed to attend at work, the employer may wish to clearly set out that, if the employee does not return to work by a specified date and time, they will be deemed to have abandoned their position.

Ultimately, each case of abandonment must be considered on its own facts in light of the circumstances facing each employee and employer.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.