Employer argues he had been absent for three consecutive days without notice
A worker recently filed a claim before the Court of King’s Bench of Alberta, alleging wrongful dismissal against his employer since he had a pending reinstatement request after medical leave. On the other hand, the company said the worker abandoned his employment.
Allan Stonham worked for Recycling Worx Inc. (RWI), driving commercial trucks for its recycling business. In October 2019, he suffered a workplace injury after he fell off a truck trying to remove a tarp.
He lost consciousness and broke his collarbone. He missed work and then performed modified duties, which “he found menial and tedious.”
He made a workplace harassment and occupational safety complaint. Then, he went on a medical leave as recommended by a registered psychologist.
By July and August 2020, Stonham was expected to be ready to return to his full-time pre-accident duties by September 15, 2020, and he was pushing RWI to let him start driving again with a helper while he fully recovered.
RWI refused that request. Subsequently, in September 2020, neither party confirmed that he was actually ready to return to his pre-accident duties. Stonham did not attend work on September 15-17, 2020, and on September 18, 2020, Stonham requested reinstatement.
RWI took the position that Stonham had resigned based on RWI policy because he did not attend work for three days without calling the office, and RWI accepted his resignation.
Stonham filed a lawsuit against the employer, but the latter said he resigned or abandoned his employment.
Was there resignation or abandonment?
In its decision, the court found that Stonham “did not subjectively intend to resign: rather, he wanted to return to work as soon as he was able, and even sooner if RWI would give him a helper pending his full recovery from his accident.”
“There is no evidence Stonham ever articulated any intention to resign, and his emails objectively indicate an intent to return. Although not determinative, he did not use the words ‘resign’ or ‘quit’ at any time,” the court said.
“Further, his reinstatement request, which was likely received by RWI before it sent the resignation acceptance letter, is clear evidence of an intention to continue his employment,” it added.
Moreover, the court also said that “no objective person would have concluded that Stonham had abandoned his job.”
“This was further made abundantly clear in his reinstatement request, which RWI ignored because it had already decided to close its file and move on from Stonham (based on his three days of non-attendance, even though it was not clear whether Stonham was actually able to return to his pre-accident duties at that time).”
Thus, the court said the worker did not resign or abandon his employment, ruling that he was wrongfully dismissed without notice.
He was entitled to a 2.5-month reasonable notice period and $11,250 in damages plus pre and post-judgment interest.
