In Hettrick v Triple F Paving (2021 ONSC 208) Miller J. had a situation where a 73 year old office manager with 21 years of service went off on a sick leave. Her employer asked for a medical note but did not say that in the absence of a medical note she would deemed to have quit. She obtained a medical note but for some inexplicable reason did not send that note to her employer. Two years later, she wrote to her employer saying that she is OK and ready to come back to work on a graduated basis. The employer refused her request and said that she abandoned her employment and that there was no vacancy.
The Court held that there was insufficient notice by the employer to the employee as to what would happen if she did not deliver a medical note. The Court said as follows
[40] Triple F submits that it is undisputed that Ms Hettrick was advised that they required a copy of her medical certificate in order to authorize her request for medical leave. I find that the evidence does not go that far.
[41] Nowhere in the correspondence to Ms Hettrick did Triple F specifically tell her that a medical certificate was required in order to authorize her request for medical leave. The only email reply to Ms Hettrick’s request for medical leave, in which specifically asked to be advised in writing – at her email address – “what additional information is needed to process this request.” was the response “Sounds great to me, Bev.”
[42] While Triple F did request a doctor’s note by way of a Post-it note, that communication did not indicate that a medical certificate was required for the medical leave to be approved. Neither did the letter of October 15, 2015. In that letter, Triple F simply indicated that if the requested doctor’s note was not received by October 31, 2015 they would have to advise the Canada Revenue Agency that the Record of Employment is “to be cancelled for lack of verification”.
[43] Aside from these communications, there is no evidence to support Triple F’s assertion that they “made continuous attempts to communicate with Hettrick regarding the status of the medical certificate and the status of her medical leave, which went wholly ignored”.
[44] It is not disputed that Ms Hettrick did not take any steps to have the medical certificate delivered to Triple F, nor did she request that her physician deliver the medical certificate on her behalf. Triple F questions Ms Hettrick’s evidence that she was not well enough to send in the doctor’s letter of November 27, 2015.
[45] Triple F points out that the letter from the physician dated July 5, 2018, is not contemporaneous with Ms Hettrick’s purported inability to send in the November 27, 2015 letter. Triple F submits that the contents of the letter of July 5, 2018 is not in affidavit form nor has the doctor been qualified as an expert. Triple F relies on Betts at paragraph 62 which indicates:
Employees on medical leave will not be immune to abandonment where they have failed to follow employee policies and where there is no medical evidence available to support that the employee could not comply with these policies.
[46] Ms Hettrick relies on Lemesani v. Lowerys Inc., 2017 ONSC 1808 at para. 134 in support of her position that an employer must demonstrate that an employee’s words or conduct clearly and unequivocally indicated an intention to abandon their employment.
[47] Ms Hettrick relies on Nagpal at paragraph 39 in support of her position that an employee’s failure to communicate during a medical absence is not an unequivocal indication of an intention to abandon one’s position. Further, the Ontario Divisional Court held, in Sutherland v. Messengers International, 2018 ONSC 2703 at para. 25 that 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.
[48] Ms Hettrick relies on evidence that at no point prior to November 6, 2017 did Triple F: attempt to clarify the status of her medical leave; inquire whether her intention to return to work had changed; suggest that she had “abandoned” her position; or warn that her position would be considered “abandoned” by the company.
[49] Further, Ms Hettrick’s request for leave, made September 29, 2015 clearly communicated her desire to return to work when able and her expectation that that “all duties and responsibilities” associated with her job “will be fully reinstated”. At no time did Ms Hettrick resile from this position, nor did Triple F at any point, before November 7, 2016 warn Ms Hettrick that her expectation that she would be able to return to her former position would or could not be met.
[50] I find on the evidence, that Ms Hettrick never abandoned her position. To the contrary, at the time she requested leave, she specifically communicated to Triple F her desire to return to her position once well. 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.
He went on to find that reasonable notice was 18 months and that at age 73 she had no duty to mitigate.
My Comments :
This case sets a very high standard to prove job abandonment. In essence the employer must make it very clear that if the employee does not do something within a specific time frame ( i.e. get a medical note, appeal an insurer’s denial, suggest accommodation or return to work) then they will probably lose this argument.
Had the employer done a proper follow up on the medical note and had the doctor continued to say that she could not predict when the employee would recover, then after some period of time the employer may have been able to rely on the doctrine of frustration. This would wipe out the employee’s entitlement to reasonable notice and the employee would only her ESA minimums. As this defendant was a small family business, it seems likely that they did not have a payroll in excess of $2.5 million and thus all the plaintiff would receive is 8 weeks termination pay.
The Judge’s comments on having no duty to mitigate at age 73 is refreshingly honest. I often have employers at mediation who claim that age is not a barrier to finding a job as they proclaim that they employ many older workers. I then ask them ” How many 73 year old employees did you hire in the last year?” Silence is the usual response.
I suspect that this employer simply assumed that at age 73 the plaintiff was simply going to drift into retirement and they would never have to hear from her again.
They were wrong.
Lesson : Don’t underestimate the older worker.