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The BC Court of Appeal earlier this week in Pereira v. The Business Depot Ltd. considered whether an employee abandoned his job when he failed to return to work following a disability leave.  The trial judge disagreed with the employer, found that the employee had been wrongfully dismissed and awarded him the equivalent of 10 months compensation (and stock options) in lieu of reasonable notice.  The employer appealed and argued, in part, that the trial “misapprehended and misapplied the test for abandonment”.

The Court of Appeal disagreed.

The facts are always important as is the timeline.

In this case, the facts are somewhat convoluted.  Long and short of it is that there seems to have been some assumptions made by the employer regarding the employee’s return to work that were found to be “unreasonable” (to use the trial judges word) in the  circumstances.

The test for determining whether an employee had abandoned his or her employment is to ask whether, “viewing the circumstances objectively, would a reasonable person have understood from the employee’s words and actions, that he or she had abandoned the contract”.  The issue, really, is whether the person quit or resigned, which has a subjective and objective element to it.  According to the BC Court of Appeal in Danroth v. Farrow Holdings Ltd.:

To be effective, a resignation must be clear and unequivocal.  There must be a clear statement of an intention to resign, or conduct from which that intention would clearly appear.

Closer to home, the Ontario Court of Appeal explained the test in the same way in  Kieran v. Ingram Micro Inc. and, importantly:

Whether words or action equate to resignation must be determined contextually.  The surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood Mr. Kieran to have unequivocally resigned.

Further, an employee can withdraw (or resile) from a resignation, according to the Court in Kieran ”provided the employer has not relied upon it to its detriment”.

In Pereira, the Court concluded that:

…. it was not objectively reasonable for [the employer] to believe that [the employee's] failure to report for work in Nanaimo five days later, or even during the following week, evinced an intention on his part to abandon his employment.  [the employee] had consistently expressed a desire to return to work at the store in Nanaimo.  However, it was clear that once he arrived in Nanaimo he would require time to re-establish himself there, both in terms of living arrangements and medical and other support.

The case establishes a number of important principles when dealing with the thorny issue of resignation and abandonment.  It is critical to paper the file thoroughly, sketch out the timeline (distinguishing between what is known and what is believed), exercise restraint and then objectively assess the evidence before making the call.  Don’t rush to judgment.

Abandonment cases where a disability is involved are tough to make out (but not impossible).  The difficulty arises from having to build the abandonment argument around the circumstances which likely will not include an express statement of “I quit!”.

Do the facts, timeline and evidence viewed objectively, establish on balance of probabilities, an intention on the part of the employee has abandoned his contract of employment?  To successfully make out the argument, the employer must lay a solid evidentiary foundation.