He is the human resources department’s biggest nightmare and he works at just about every large company across the country. He is the sick employee that may never return to his job. And his workplace legacy just got a lot larger.

Paul Pereira earned a position as a senior employee. But he had a problem that ultimately cost him that job.

Pereira, the general manager at a Staples Business Depot in Nanaimo, B.C., suffered from depression and a drug addiction. After stints on the company’s disability insurance plans, Pereira entered a treatment facility for his addiction hoping to return to work once he finished the program.

When Staples learned that Pereira intended to return, it told him not to go into his store until the staff could first be notified.

 

Pereira agreed although he did not let Staples know where he could be found when he returned to Nanaimo a few days later.

Since it could not find him and still had not heard from him in a few days, Staples wrote to Pereira telling him that it “assumed” that he had abandoned his job.

Believing that he had been fired and that Staples would not reverse its decision, Pereira did not bother to contact Staples to dispute its assertion that he abandoned his job. Instead, he decided to get a lawyer.

At a recent appeal, Staples argued that the final letter it sent to Pereira called for his response if he truly intended to return to his job and because he just ignored it, he must not have cared. However, the court disagreed. It was unreasonable for Staples to conclude that Pereira did not want to return since he had been late for only a few days and because he previously expressed a desire to return to his job. Accordingly, Pereira did not abandon his job. Instead, he was wrongfully dismissed.

This finding has broad implications as employers struggle to address the difficult situation where an employee is deemed fit to return to work but he has not yet returned.

According to this case, assuming the employee no longer wants to return can be tantamount to a termination.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

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