Avoiding Wrongful Termination Claims

An employee's house burns down, they leave work indefinitely, and you can't get a hold of them – what do you do? If an employee leaves work indefinitely due to a significant personal crisis and fails to stay in contact, is an employer entitled to take the position that the employee has resigned? This issue was recently considered by the British Columbia Supreme Court in Beggs v Westport Foods Ltd .

Wrongful termination
How should an employer proceed when an employee has to leave work due to a personal crisis?

An employee’s house burns down, they leave work indefinitely, and you can’t get a hold of them – what do you do?

If an employee leaves work indefinitely due to a significant personal crisis and fails to stay in contact, is an employer entitled to take the position that the employee has resigned? This issue was recently considered by the British Columbia Supreme Court in Beggs v Westport Foods Ltd .

In Beggs, the employee’s home was destroyed by fire in February, 2010.  The following day, the employee telephoned the employer to advise of the fire and said that she would not be coming into work and did not know when she would return. Over the next month, the employee was consumed with sorting out her insurance claim, finding a place to rent, and arranging for her home to be replaced. During this period the employer tried to contact the employee on two occasions, but the phone was disconnected. As a result, the employer prepared and filed a Record of Employment indicating the employee had quit. 

In early April, the employee was diagnosed with severe depression and obtained a note indicating that she was unfit to work.  When she contacted the employer to advise of her medical leave, she learned about the ROE. When she visited the employer’s premises, she was given a copy of the ROE for the first time, and her final pay. 

After the employee obtained legal counsel, the employer advised the employee through its counsel that she could return to work, and upon her return the employer would “advise her regarding her work schedule and her employer’s expectations regarding the job.”

The employee never returned to work. Instead, she commenced a lawsuit alleging wrongful dismissal. In response, the employer argued the employee had resigned and, further, had acted unreasonably in failing to return to work when invited to do so.
 

Wrongful termination

The court sided with the employee, concluding that the evidence did not establish a clear and unequivocal resignation by the employee, and that she had in fact been terminated by the employer. Further, the court held that the offer to return to work was ineffective, because it did not make clear to the employee that she was being offered her old job back on the same terms and conditions. 

The court awarded the employee, who had worked for the employer for 10 years, 11 months’ pay in lieu of notice. Significantly, the court also awarded $20,000 in compensatory damages for breaching its duty of good faith in the manner of termination. Here, the court was troubled by the fact that the employer had not made genuine efforts to determine her status (her phone was only disconnected for a short period of time), and instead issued the ROE saying she had quit, which might have jeopardized her ability to receive EI payments. In making the award, the court concluded the employer’s conduct had exacerbated the anxiety and depression which the employee suffered following the loss of her home.

Beggs illustrates the dangers of taking the position that an employee who fails to report to work has quit, even where the employee is absent for many weeks and unreasonably fails to communicate with the employer about her status. Here, the employer made several mistakes: Not doing more to reach out to the employee (including advising that they had filed the ROE), and not taking her back unconditionally when they learned of her medical condition.
 

The employer’s responsibilities

Where an employee fails to stay in touch, the employer must make all possible efforts to speak to her, and tell her that they will be taking the position the employee has resigned if the employee does not contact them or otherwise return to work in a reasonable time. 

Assuming the employee has quit without speaking to the employer may seem a convenient solution, but as Beggs indicates, it is a risky one. After reaching out to an employee, only after a reasonable amount of time has passed and the employee has not returned to work, will an employer have a plausible argument that the employee has resigned, or has abandoned her employment. However, in cases where the absence was in any way related to a medical issue, the safest course is typically not to take that position at all and instead reinstate the employee and place her on a medical leave.