September 1, 2015
In a recent decision, the Ontario Superior Court summarily held that an employee that failed to report to work over a period of 8 months, relocated his residence from New Brunswick to Ontario without approval, and failed to follow the policies and procedures applicable to his short term disability claim had abandoned or resigned from his employment with IBM Canada Ltd. (“Employer”).
The employee worked for the Employer for 15 years in Nova Scotia and New Brunswick. In the fall of 2013, the Employee experienced an episode of depression. He ceased reporting to work and informed the Employer that he intended to apply for short-term disability. Shortly thereafter, the employee relocated from New Brunswick to Ontario to live with his fiancée without informing the Employer. This move violated the Employer’s policy which required prior approval before an employee could relocate during a convalescence.
The Employee failed to remit appropriate documentation to the insurer to support his request for short term disability. The insurer required a medical physician to assess and diagnose the employee, and provide a plan of treatment. The employee submitted letters from his psychotherapist treating him in Ontario. These letters were rejected because they were not authored by a psychiatrist or medical physician licenced by the Canadian Medical Association as required by the short term disability plan.
The insurer denied the request for short term disability. The Employee made use of the insurer’s internal appeals process but did not produce the requisite medication documentation to support the appeal. The Employer sent the employee a series of five letters over the course of eight months indicating that if the employee did not return to work, or alternatively, provide the required medical information to the insurer, the Employer would consider the employee to have resigned or abandoned his job. Following the Employer’s fifth letter, the Employer took the position that the Employee had voluntarily resigned because the Employee failed to return to work or submit additional medication documentation to support his appeal by the imposed deadline.
On the motion for summary judgment, the court found that the employee clearly and unequivocally displayed an objective intention to no longer be bound by the employment contract. The factors supporting this conclusion were as follows:
(a) the employee failed to report to work for eight months;
(b) the employee did not follow the policies of the insurer;
(c) without disclosure to the Employer, the employee unilaterally moved to Ontario to live with his fiancée.
The court praised the Employer’s numerous clear warnings to the employee before the Employer took the position that the employee had resigned. The Court rejected the employee’s argument that the employer was under an independent duty to accommodate the employee under these circumstances.
This case is instructive to employers to provide helpful guidelines concerning an acceptable process to follow before claiming that an employee has abandoned or resigned from his or her employment. It also sounds a note of caution for employees dealing with disability claims that the failure to follow the requirements of a disability application can have dire consequences.
Betts v. IBM Canada Ltd., 2015 ONSC 5298