Terminating your Employee for No-Show is a No-Go: What Employers can Learn from Wong v. Polynova Industries Inc.

By Naomi Rozenberg
Phone: 604-685-3911
Email: nrr@lmlaw.ca

Consider this scenario: Your employee says he is not feeling well and will be taking a few days off work. After a few days, however, the employee does not report to work. Days turn into weeks, and he is still a no-show. You try calling him, but you are unable to reach him. More time goes by, and the employee has not made any attempt to contact you. You assume he has quit, and you hire a replacement to do his job. More than two months later, the employee unexpectedly shows up to work and clocks in for a shift. You inform him that you assumed he resigned and you have no position for him. As a result, he sues you for wrongful dismissal.

This essentially happened to Polynova Industries, a small manufacturing business in Richmond, BC. Polynova’s former employee, Jason Wong, was mysteriously absent from work for more than 2 months. When Mr. Wong returned to work, he was told that the company no longer had a position for him. The BC Supreme Court found that the company terminated Mr. Wong, and awarded Mr. Wong damages of $52,500.00 in lieu of notice, plus his legal costs.

The basic facts of Wong v. Polynova Industries Inc., 2021 BCSC 603 are as follows:

  • The plaintiff, Jason Wong, worked at Polynoma for 15 years as a machinist. He reported to the owner, Dennis Wong (no relation).
  • On March 24, 2020, the plaintiff informed a supervisor named Steven Fung that he was not feeling well, and would be resting at home for a few days.
  • On March 27, 2020, the plaintiff asked Mr. Fung to pass on a message to Dennis Wong that he would be isolating at home for two weeks.
  • After two weeks, the plaintiff did not return to work, or contact anyone at Polynova.
  • Dennis Wong attempted twice to telephone the plaintiff in April 2020, but was not able to reach him. This is because the plaintiff had disconnected his landline, which was the only phone number that Polynova had on file.
  • The plaintiff made no attempt to communicate with anyone at Polynova about his extended absence.
  • In April 2020, Polynova trained an employee to do the plaintiff’s job and considered that person to have effectively replaced the plaintiff.
  • On June 1, 2020, the plaintiff attended at work for a regular shift. He clocked in, but received instructions to wait in the break room. At that point, he had a brief meeting with the owner, Dennis Wong. Polynova offered to pay the plaintiff four hours’ wages for coming in that day, and there was some discussion about a Record of Employment (ROE).
  • The following day, Dennis Wong wrote to the plaintiff, asserting that the plaintiff had quit his job by his extended unexplained absence. The plaintiff responded that he considered the company to have terminated his employment. He requested compensation in lieu of reasonable notice.
  • The company issued the ROE, indicating that the plaintiff had quit his job; this would prevent the plaintiff from obtaining Employment Insurance benefits.
  • The plaintiff responded to dispute the accuracy of the ROE and advise that he would be pursuing legal actions against the company.
  • The company replied with an offer to re-employ him at the same rate of pay, with back pay to June 1, 2020. However, the plaintiff rejected the offer, citing a breakdown of the relationship between the parties.

The BC Supreme Court held as follows:

    1. Polynova did not issue the plaintiff’s ROE in April 2020 or May 2020. This demonstrates that the company did not accept the plaintiff’s resignation at the time. Thus, when the company advised the plaintiff on June 1, 2020, that he no longer had a job at Polynova, that action amounted to termination without notice.
      1. The plaintiff rejected the company’s offer of re-employment and back pay. However, this did not amount to a failure to mitigate, because “the plaintiff perceived the trust between the parties to have been irreparably broken by that time”.
        1. The plaintiff was entitled to 15 months’ pay in lieu of notice, which amounted to one month for each year of continuous service.

What can an employer learn from this case?

        1. Communication is key. If an employee stops showing up to work and you assume that he has resigned, take steps that are consistent with that assumption, and communicate that assumption to the employee. Send a letter or email to the employee to advise that if he does not report to work by a certain date, the company will consider him to have resigned. If he does not respond or report to work by that date, issue a Record of Employment stating that the employee has resigned. Contemporaneously remove the employee from the company’s extended benefits plan, disable his access fobs or key cards, and courier the employee’s personal belongings to his home address.
        1. Employment contracts reduce your risk. Ensure that all of your employees have signed an employment contract, which includes a termination clause that sets out the length of notice the employee will receive if they are dismissed without cause. In many instances an employer can, by agreement, limit an employee’s entitlement to severance, and reduce the company’s potential exposure to a wrongful dismissal lawsuit and claim for common law pay in lieu of notice. Always consult with an employment lawyer to ensure that your employment contract – including the termination clause – is enforceable.

This case reminds employers to include a termination clause in all service agreements and to give both employees and contractors a reasonable opportunity to obtain legal advice prior to entering into any such agreement.

WHAT WE DO:  Lesperance mendes represents employers and employees in wrongful dismissal claims, human rights complaints, and CRT proceedings.  For further information contact Naomi Rozenberg at 604-685-3911 or nrr@lmlaw.ca to schedule a consultation.

THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied on upon without independent legal advice.