Employment Law – The Dangers Of Guessing

By Alfred Kempf
Categories: Blog, Employment Law

A British Columbia employer has recently been ordered to pay an employee $10,000 in damages for bad-faith [Beggs v. Westport foods Ltd.]. The employer, in a small community, was advised by the employee that her house had burned down and that she wasn’t sure when she would be able to return to work.

The employee then went about the onerous tasks of setting up a new household, dealing with insurers, and other such issues.  Likely the stress contributed to her beginning to suffer from depression.

In the interim, the employer made a couple of attempts to contact her via the telephone.  It was unsuccessful likely because the worker’s telephone was disconnected due to the fire. Rather than making any additional efforts to contact the employee, the employer simply terminated her employment alleging that she had failed in one of the fundamental conditions of employment-to attend work.  To make matters worse, the employer insisted on using the code for resignation on her record of employment thus causing an obstacle for the employee to obtain employment insurance benefits.

The court found not only that the employer made insufficient efforts to contact the employee in the circumstances, but that its unreasonable bad-faith conduct served to worsen the worker’s depression.

An interesting aspect of the case is that the employer, once it learned of the employee’s difficulties, offered her an opportunity to return to work, however, it did not stipulate the terms of such new employment. The court considered offer insignificant because it was so vague.

The lesson for employers is that some due diligence must be exercised prior to assuming that employee who is not at work has resigned.  There may well be circumstances which quite reasonably prevent the employee from reporting to work or even reporting her absence. Due diligence is necessary. In addition, once it is discovered that the employer acted unreasonably in assuming the employee resigned, it is not too late to restore the employment relationship by a reasonable and detailed invitation to return to work.