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Personal emergency leave provisions took precedence over deemed termination clause

An employee left work early for an emergency dental appointment without notifying her employer. Should the employee be terminated immediately?

Some employers may think they are justified in terminating such an employee because the employment agreement (or collective agreement as in this case) contains a deemed termination clause stating:

An employee shall lose all seniority and shall be deemed to have quit the employ of the Employer and the employment of the employee shall be deemed to have been terminated without further notice for any of the following reasons:

[…] (f) leaving the Employer’s premises during regular working hours (not including meal breaks) without the permission of the Employer”

An Ontario labour arbitrator just decided that, when an employee left work early for an emergency dental appointment without notifying her employer, the employer should not have terminated the employee as per the termination clause in the collective agreement. Rather, the “personal emergency leave” section of the Employment Standards Act applied.

What is personal emergency leave?

Section 50 of the Ontario Employment Standards Act states:

(1) An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:

  1. A personal illness, injury or medical emergency.
  2. The death, illness, injury or medical emergency of an individual described in subsection (2).
  3. An urgent matter that concerns an individual described in subsection (2)

Personal emergency leave is there for employees who face an emergency medical situation personally or with respect to certain family members. An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay in the situation. Employees are required to advise the employer of the need to take the leave, but if they must begin the leave before advising the employer, the employees must advise the employer soon as possible after beginning the leave.

Employees are entitled to take a total of 10 personal emergency leave days in each calendar year; that said, if an employee takes part of a day of as leave, the employer may deem the employee to have taken one full days’ leave. Lastly, an employer may require an employee to provide evidence that is reasonable in the circumstances that the employee is entitled to the personal emergency leave.

How did personal emergency leave take precedence over a deemed termination clause?

The employee worked at a retirement residence. She was 59 years old and worked 68 hours bi-weekly as a full-time housekeeper. She had a clean disciplinary record other than a three-day suspension, which took place before the workplace was unionized.

The situation was simple: one of her dental crowns fell off, causing significant pain. She made an appointment the next morning for 3:00 p.m. that day.

The problem was, the employee worked until 2:17 p.m., and then took off without telling the employer. She did not tell any of the managers that she was leaving early.

This led to the employee being terminated. The employer relied on one of the articles in the collective agreement that stated that an employee would lose seniority and be deemed terminated in the case that the employee left the premises during regular working hours without the employer’s permission. In the alternative, the employer argued there was just cause for the termination because the employee was aware of the company rules and disregarded them, and she had a prior disciplinary record.

The union launched a grievance on the employee’s behalf.

The union pointed to section 50 of the Employment Standards Act, and claimed that this was clearly situation of personal emergency leave. The employer employed 50 or more employees and this was a case of personal illness, injury or medical emergency. There was even a provision stating that if the employee was not able to advise employer before leaving, the employee was able to advise the employer of the leave as soon as possible after beginning it. What’s more, employers are not allowed to dismiss employees because they take a personal emergency leave. This was an unfortunate situation where the employee used her free-standing right to personal emergency leave. In the alternative, the union pointed to an article in the collective agreement that stated that the failure of the employer to consider the employee’s circumstances constituted arbitrary action which should cause the termination to be set aside.

The arbitrator agreed with the employee. There was no question that section 50 of the Act applied to these circumstances. In this case, it was clear that the requirements of the provision had been met; the employee faced a dental emergency and was employed by an employer that regularly employed 50 or more employees. There was no doubt raised about the legitimacy of her requirement for emergency medical leave. The employee’s delay in providing the notice of the leave did not negate her entitlement to the personal emergency leave. In fact, the arbitrator stated,

The instant case presents a particularly clear example of why personal emergency leaves may be needed by employees.”

Consequently, the arbitrator found that the termination could not stand and the employee was to be reinstated without loss of seniority and with compensation. In fact, the employee’s record was to be revised to show a letter of warning for her failure to provide notice before leaving the employer’s premises on that day.

What can employers take from this case?

As can be seen in this case, it is important to remember not to apply the provisions of the collective agreement so strictly that the results are absurd. In this case, there was a personal emergency and the employee satisfied the conditions to meet a personal emergency leave; terminating a long-term employee because of a simple notice omission would lead to absurd results.

How can employers avoid missing the forest for the trees? It is always important to understand the context of the situation before applying provisions. It is important to remember to conduct a thorough investigation about what occurred before making any hasty decisions.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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