Does an employee not returning from leave constitute just cause for dismissal? (Toughest HR Question)

Emergency leave provisions in Ontario entitle employees up to 10 unpaid days
By Brian Kenny
|Canadian HR Reporter|Last Updated: 06/18/2013

Question: Is failure to return at the conclusion of an approved emergency leave just cause for dismissal? What if the employee notifies the employer he won’t be returning just yet, despite the fact the employer hasn’t approved additional leave?

Answer: Employment legislation with respect to emergency leave varies throughout the country. In most provinces, no emergency leave provisions are found within the governing employment legislation.

In Ontario, however, the Employment Standards Act, 2000, contains emergency leave provisions that apply to employers of 50 or more employees. These provisions entitle employees to a job-protected leave of up to 10 days without pay every calendar year, should they require time away from work due to an emergency situation. Recognized emergencies include an illness, injury, medical emergency or an urgent matter for the employee or a family member as defined under the act.

An employee is required to advise her employer of a leave of absence. Adjudicators have accepted and recognized an employee has a duty to provide appropriate notice and information to the employer, such as the nature of the absence or reasons for the absence, and the expected length of the absence.

If an employee has to begin a personal emergency leave before notifying her employer, she must inform the employer as soon as possible. Failure to give notice, however, does not erase the employee’s right to emergency leave.

An employer could impose discipline if an employee fails to provide any notice of the emergency leave (either before or after the leave) or fails to return to work after the expiration of the 10 days provided by the act, if the employer’s disciplinary action is appropriate — and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice or return to work.

In determining whether a failure to return to work at the conclusion of an approved emergency leave constitutes just cause for dismissal, adjudicators may consider factors such as the employee’s position and length of service, the resulting harm suffered by the employer, whether the employee had a reasonable excuse, and whether she was warned her job was at risk.

Brian Kenny is a partner at MacPherson Leslie and Tyerman in Regina. He can be reached at (306) 347-8421 or kenny@mlt.com.

Reader Comments
If someone resigns and provides beyond the minimum notice (say one month), it’s usually because she is being respectful of her employer’s possible dilemma and trying to help the transition. She most likely negotiated a later start date to begin her new job to do that. If the employer summarily dismisses the person or says only two weeks is necessary, that, to me, is a dismissal without cause and attracts employment standards minimums plus common law severance. In most cases where I’ve seen this occur, the employer is simply being vindictive — angry because it has been foresaken for another.

Anonymous, commenting on Jeffrey R. Smith’s blog “Quitting a quitter.”

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