Understanding the complexities of managing an employee who “ghosts” you can prevent further issues and challenges when resolving the situation.

Ghosting, or otherwise known in legal terms as job abandonment, occurs when an employee stops coming to work; no notice or communication is given; and the leave itself is unexplained. Situations of ghosting breach a fundamental condition in the employment agreement and is backed by the Supreme Court of British Columbia’s decision in Pereira v. The Business Depot Ltd., 2009 BCSC 1178, which states that there is an implied duty of employees to attend work.

What Should Employers Do?

When faced with a potential instance of job abandonment, employers should:

Determine if the Employee Resigned or is on Leave:

Consider the employee’s behavior or any statements that may indicate an intention to leave employment without notice.  Assess whether a reasonable person would believe these actions of the employee are intending to end the employment relationship.  Is there the possibility that the employee did in fact give notice or went on a leave?

Try to Communicate with the Employee:

Employers must make genuine efforts to communicate with the employee.  Document all attempts to reach out via phone calls, emails, and registered mail. This documentation serves as evidence that the employer met grounds for termination and determined the employee’s intent to end the employment relationship.

Establish Just Cause:

In cases where repeated communication attempts fail and the employee cannot be located, employers may be able to say they have grounds for termination. There needs to be multiple attempts at communication by the employer. These attempts will be evidence in an assessment of whether the employee had intention of returning to work.

We Also Recommend:

Having strong policies on absences and job abandonment and ensuring that accurate records are kept in accordance with those policies are essential to establishing cause for termination in these circumstances.

Considerations

Employers must exercise caution and due diligence to avoid potential liabilities and legal claims.  An employer who mistakenly identifies the employee to have abandoned their employment and terminates them as a result, may become subject to a wrongful termination action.  If the employee was on leave, or if there is a reasonable explanation for their unexpected absence, that employee may be able to bring a wrongful termination or human rights claim.  Therefore, an employer needs to take reasonable steps and test to determine why the employee may be on leave or if they gave notice of leave, before moving to termination.

An employer who experiences consistent employee absenteeism may find themselves in a difficult position. The process to determine if the employee abandoned employment can be stressful and lengthy.  If done incorrectly, it may also lead to legal claims.  Reach out to our Workplace Law group to get assistance with dealing with instances of employee ghosting.