Lately, I have fielded several calls from employers about AWOL employees.
Some of the employees took a leave when COVID first hit and haven’t been heard from since. Some of the employees were on a sick leave and have not updated the employer on their medical status for a very long time.
Usually the employer has recently tried to follow up with the employee but can’t connect with the employee by phone or email. At this point, I get a call and the question I hear is: “Has the employee abandoned his (or her) employment?” or words to that effect.
This blog summarizes the Hettrick v Triple F Paving case which recently considered this issue.
After being off work for two years because of sickness, the 73 year old plaintiff, Ms. Hettrick, told her employer she was ready to return to work. When she requested the sick leave she clearly communicated her desire to return to work when able and her expectation that “all duties and responsibilities” associated with her job “will be fully reinstated”. The employee never provided the employer with a doctor’s note to support her leave request.
Because she did not provide a medical note to justify the sick leave and because she had not updated the employer on her status for 2 years the employer said she had abandoned her job and refused to permit her to return to work.
The judge found as a fact that the employer did not tell the employee that a medical certificate was required for the medical leave to be approved.
As far as the employer’s job abandonment argument is concerned, the judge quoted another case which stated: “…where there is confusion or uncertainty over whether an employee abandoned his engagement, the onus is on the employer to clarify with the employee whether he or she quit.”
The judge concluded: “I find that Triple F has not established that Ms Hettricks’s words or conduct clearly and unequivocally indicated an intention to abandon her employment.”
Lessons to be Learned:
- Make sure any employee who is absent from work because of illness is required to have a current medical note on file. Often the initial medical note states the employee is unable to work until a specific date and will be reassessed before that date. If so, tell the employee that for planning purposes you need an updated medical note before the prescribed end date of the leave if the employee is unable to return to work or an extended leave will not be granted and the person will be on an absence without leave. This kind of extension is not unusual and you do need to know for planning purposes as someone must perform the employee’s job duties.
- If the person does not return to work as scheduled without explanation, then follow up immediately, inform the person they have not been approved for a continued leave, and provide a deadline for responding. If the person’s job duties have been delegated to other employees these employees may be getting burnt out and the employer needs to know whether a replacement needs to be hired on a temporary basis.
- If the person does not respond by the deadline, then follow up again, confirming the person is AWOL, provide another deadline and explain the consequences of not responding, which is the person will be deemed to have abandoned their position. You should make sure you can prove the person received this directive and the consequences of not complying. Depending on the circumstances you may need to send more than one of these deemed job abandonment letters/emails. For long service employees, I think some judges will expect an employer to provide the employee with a number of chances to comply before concluding the employee abandoned their position.
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