It has always been the case that the courts will place a high burden on any employer trying to establish that an employee has abandoned or voluntarily resigned from his or her employment. Usually clear and unambiguous intent and language is a minimum requirement. In a recent case in Ontario, however, an employer was successful in establishing that a former employee had abandoned his employment and, in doing so, it provided an informative example for employers confronting situations where employees are absent for prolonged periods of time.
In the Betts v. IBM Canada Ltd., 2015 ONSC 5298, the Ontario Superior court recently upheld an employer's decision to terminate an employee's employment for abandonment of employment or voluntary resignation where the employee (1) was absent from work for over eight months; (2) failed to submit necessary documentation to support an application for short-term disability; and (3) failed to return to work despite multiple written warnings from the employer.
Antony Betts ( “ Betts ” ) was employed by IBM Canada Ltd. ( “ IBM ” ) in New Brunswick as a Learning Specialist, although he travelled to IBM's offices in Ontario to teach on occasion. During this time, he became engaged to a woman who lived near IBM's Ontario offices and would stay with her when he was visiting on business. Betts was eligible to apply for benefits under IBM's short-term disability ( “ STD ” ) plan.
Betts had suffered from major recurring depressive disorder and anxiety disorder since 2008 and had suffered two major depression episodes, including the one from October 2013 to July 2014 giving rise to the legal dispute between the Betts and IBM. As a result of the depress ive episode, Betts ceased reporting to work in New Brunswick on October 16, 2013. IBM promptly advised Betts that he required approval from the benefits provider in order to receive any STD benefits. Throughout his absence from work and despite “ steering ” from IBM, Betts consistently missed necessary deadlines to submit sufficient documentation or to file appeals. Importantly, Betts also relocated from New Brunswick to Ontario to live with his fianc é e without advising IBM or the benefits provider, including selling his property in New Brunswick.
Between December 2013 and June 2014, IBM sent five letters to Betts outlining Betts' options in the face of his refusal and/or inability to comply with the benefits plan' s requirements. In several of these letters, IBM advised Betts that, in the absence of pursuing one of the available options, namely submitting the necessary medical documentation or returning to work, he would be held to have voluntarily resigned from his employment. Ultimately IBM took the position that he had resigned and Betts brought a claim.
The court stated that, in determining whether an employee has abandoned his employment, the following questions must be examined: Do 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?
The court adopted the factors submitted by IBM to confirm that Betts indeed abandoned or resigned from his employment. These factors were:
- A failure to report to work and fulfill his employment obligations for over eight months;
- A failure to follow the policies and procedures set forth in IBM's benefits plan regarding applications for short-term disability benefits; and
- A voluntary and undisclosed relocation from New Brunswick coupled with a lack of intention to return to New Brunswick and resume employment
In particular, the court emphasized that IBM's five letters to Betts outlining his options to either pursue STD benefits or return to work “ could not have been clearer ” . The court further acknowledged IBM's patience in extending deadlines for Betts and ultimately concluded that, “ It is difficult to imagine what more the defendant could have done during the plaintiff 's [Betts] 8 month absence from his job in New Brunswick. ”
The court held that all of Betts' actions were consistent with someone who had no intention of returning to work. Therefore, the court found that he had abandoned or voluntarily resigned from his employment with IBM and was not entitled to damages for a reasonable notice period.
Furthermore, the court concluded that an employee suffering from medical issues is not immune from being found to have abandoned his or her employment. In this case, the court stated that IBM was accommodating, extending deadlines on many occasions, repeating the various options to Betts and supporting his application for STD benefits. With this in mind, the court dismissed Betts' claims for aggravated or punitive damages.
Employers must be proactive when dealing with employees who have been absent for a prolonged period of time and be able to rely on clear documentation throughout the period of absence. In this case, IBM took the necessary steps to establish the groundwork for claiming abandonment of employment, such as sending correspondence outlining the consequences of failing to return to work by a certain date, throughout Betts' eight month absence from work. Finally, IBM was found to have treated Betts fairly and taken multiple steps to accommodate Betts and facilitate his application for STD benefits prior to terminating his employment.