A long-time dental assistant “abandoned her employment” and was not terminated, according to a ruling by the Nova Scotia Labour Board that overturned an an earlier order from the Director of Labour Standards.
The case centred on an appeal by Windsor Dental Centre (the “appellant”). The respondent, D.P.J., had worked at the Windsor Dental Centre since July 1989 as a dental assistant. The Director of Labour Standards had earlier found that the appellant terminated the employment without cause and awarded damages in lieu of notice. Windsor Dental Centre appealed that decision under Section 21 of the Labour Standards Code.
The board’s decision, delivered after a hearing in Halifax on May 28, 2024, concludes that the employer did not dismiss the employee. Instead, the board states that the employee’s words and actions amounted to abandonment of her role. “The Board is persuaded on a balance of probabilities that [the employee] abandoned her employment with Windsor Dental Centre,” the Board wrote. “Her employment was not terminated. The appeal is allowed and the damage award from the Labour Standards Director is rescinded.”
What happened
At issue was a period starting in late January 2023, when new sterilization guidelines introduced by the Provincial Dental Board led to changes in how Windsor Dental Centre handled its instruments and the protocols for staff attire and sterilization audits. According to testimony, the employer asked staff, including the employee, to review the new requirements. The employer also scheduled a lunch-hour discussion session for January 30, 2023.
According to the employer’s evidence, the employee expressed discomfort with the new guidelines, and on January 25, 2023, she took a medical leave of absence. A doctor’s note dated January 26, 2023, confirmed her absence from January 27 to February 28, 2023. During this time, the employee’s husband, identified as S.J., communicated with the employer, requesting a Record of Employment (ROE).
The employer’s representative, Dr. V. Somasekaram, asked that the employee contact her directly regarding the ROE. The employee then emailed on January 28, 2023, reiterating the request for the ROE “as soon as possible.”
The employer testified that the request for an ROE, along with a message from the office manager (referred to as Shelley), led her to believe the employee was quitting. At the hearing, the employer said Shelley had advised that the employee was not returning and would leave in early April. In turn, the employer arranged for alternate staffing and believed the employment relationship had ended.
Employee asks to come back
On February 22, 2023, the employee wrote to say she felt well enough to return to work, adding, “That is, if you are ok with me coming back?” She stated that she had reviewed the new guidelines and requested a distraction-free meeting with the employer. The following day, February 23, 2023, the employer replied by email expressing surprise. In that email, filed as Exhibit 1-6, the employer wrote: “Shelley told me you are not coming back… I didn’t realize you were coming back. You asked me your ROE. If you are taking a month off you don’t need this… I wish you all the best.”
The employee interpreted that reply as a form of termination. She responded on February 24, 2023, clarifying that she had requested the ROE to claim Employment Insurance sick benefits, not to resign. She said she had been off sick and not quitting. However, as the board’s decision notes, once the misunderstanding came to light, the employer invited the employee to return to work. The employer offered an in-person meeting and stated that there was still work available.
According to the ruling, “When she received [the employee’s] email that said she was ready to come back to work, [the employer] was surprised by it and reacted accordingly.” The board noted that the employer testified, “I wanted to talk to you but you emailed me you can’t.”
Employee skipped meeting
The employer suggested meeting on Monday, February 27, 2023, at 3:00 p.m. The employee wrote back indicating she would attend and would bring S.J. for “moral support.” The employer confirmed the appointment. However, on the day of the scheduled meeting, the employee emailed that she would not be coming in, stating, “It was suggested to me that attending the meeting today may not be in my best interest. Therefore I wont [sic] be coming to the clinic.”
The employer contacted the employee again on February 28, 2023, asking, “What is your plan?” and noting that a new dental assistant had been hired but that the employee could still return to work if she wished. The record shows no direct response from the employee. Instead, her husband returned a voicemail the same day, and the parties spoke by phone. The transcript of that call, included in the file, shows the employer repeatedly asking whether the employee intended to return and stating, “I want to meet her… if she wants to come back.” S.J. indicated at that time that the employee was on “stress leave” and unable to return.
Following this exchange, there was no further direct communication from the employee to clarify her intentions. On March 29, 2023, the employer invited the employee to a farewell party for colleagues, but received no reply. Eventually, the employee took on work at another clinic starting in July 2023.
The board’s ruling
In analyzing these events, the board applied the test for abandonment from prior case law, asking whether a reasonable person would conclude the employee abandoned the contract of employment. While the employee initially had reason to believe her employment status was uncertain, the board found that subsequent messages and actions from the employer made it clear the door was still open. The decision highlights that the employer made multiple attempts to have the employee return or at least clarify her plans.
The board notes that while the employer’s February 23, 2023, email suggested a misunderstanding, the matter did not end there. “[T]here were multiple emails exchanged between them starting the following morning,” the ruling states, “as well as a transcribed telephone conversation all of which reflect [the employer’s] adjustment to the new (to her) information” that the employee had only been on a medical leave. Those attempts, the board found, demonstrated the employer’s willingness to continue the relationship. Ultimately, the employee did not return or commit to a meeting to resolve the confusion.
“Objectively, this meets the test of abandonment,” the board wrote. Finding no evidence that the employer intended to terminate the worker, the board allowed the employer’s appeal, overturned the Director of Labour Standards’ order, and denied any damages.
In the words of the board: “The Board is persuaded on a balance of probabilities that [the employee] abandoned her employment with Windsor Dental Centre. Her employment was not terminated.”
For more information see V. Somasekaram DDS Incorporated v Parker Jollymore, 2024 NSLB 139 (CanLII).
