Employee who insists on taking a leave of absence despite employer's objections
Question: Are there any liability issues in denying an employee an unpaid leave of absence (such as the reason for the absence)? Can an employer demand an employee use up all paid vacation before considering a leave of absence? If an employee continues to insist on a leave of absence, are there grounds for dismissal?
Answer: Presumptively, an employee does not have any entitlement to a leave of absence, paid or not, unless such entitlement is founded on contract or statute. Therefore, without contractual or statutory entitlement, there is no employer liability in denying an employee an unpaid leave of absence. Further, assuming that the employer is prepared to grant a gratuitous leave of absence, the employer can insist that the employee use up all paid vacation for that leave.
Employers recognize there are many circumstances which can trigger an employee’s entitlement to a leave, paid or unpaid. Statutory entitlements include those found in employment standards legislation relating to pregnancy leave, parental leave, bereavement leave, sick leave and compassionate care leave. Human rights legislation may be engaged when the employee seeks an unpaid leave arising out a protected characteristic, such as religion, physical or mental disability, or family or marital status. The denial by an employer of a leave may be discrimination if such leave is properly founded in human rights legislation.
As for contractual entitlement, some collective agreements provide that unpaid leaves of absence “shall not be withheld unjustly.” In Black River-Matheson (Township) v. C.U.P.E., Local 1490, the collective agreement provided such an entitlement. The employee’s driver’s license was suspended after a conviction for drinking and driving. He was required to maintain a driver’s licence as a condition of his employment. The employer denied his request for a one-year unpaid leave of absence and dismissed him. The arbitrator ruled that the employer’s actions were unjust and ordered the employee reinstated with that one year of unpaid leave. In these circumstances, the employer was required to consider the reasons for the requested leave and balance the interests at stake, said the arbitrator.
On the other hand, in Brockville (City) v. C.U.P.E., Local 115, the employee was dismissed again after his license was suspended. There was no wording in the collective agreement that provided entitlement to an unpaid leave. The employee did not suggest he was an alcoholic and therefore protected characteristics were not put into play. The arbitration board upheld the dismissal on the basis that the employee could not fulfill his employment obligation.
With respect to vacation, generally, the employer has the final authority to determine when an employee will take any earned vacation, unless the employment contract or collective agreement stipulate otherwise. Review of specific employment standards legislation is advisable. Therefore, an employee may be required to take paid vacation first, in lieu of an unpaid leave of absence.
Obviously, it is not grounds for dismissal if an employee simply requests an unpaid leave of absence. An employee’s insistence on an unpaid leave in the face of the employer’s denial could constitute insubordination, which could be grounds for discipline up to and including discharge. Clearly, if an employee takes the leave of absence without permission, this could be cause for dismissal.
For more information see:
•Black River-Matheson (Township) v. C.U.P.E., Local 1490, 2007 CarswellOnt 8857 (Ont. Arb. Bd.).
•Brockville (City) v. C.U.P.E., Local 115, 2006 CarswellOnt 7342 (Ont. Arb. Bd.).
