Letting employer know before taking emergency leave not required if it's not possible: Arbitrator
An employee was fired after she left work without notice for an emergency dental appointment — but an arbitrator has reversed that decision, saying she was well within her rights.
Erlinda Bernaldez was a full-time housekeeper employed at Glynwood Retirement Residence in Thornhill, Ont. She had more than 20 years’ service when she was fired on May 22, 2012, as well as a three-day suspension on Bernaldez’s record that pre-dated union certification.
On April 3, 2012, Bernaldez broke a crown off a tooth while at work.
According to the arbitrator’s decision, Bernaldez’s dentist was gone for the day by the end of her shift, so she booked the earliest emergency dental appointment she could get, which was at 3 p.m. the next day.
Despite the fact she was scheduled to work the 8 a.m. to 4 p.m. shift, she left work shortly after 2 p.m. in order to get to her appointment.
Bernaldez told a colleague she was leaving for a dental appointment, but she did not secure permission from or inform her direct supervisor, who was away that day.
Though Bernaldez had some incidental conversation with the stand-in supervisor for the day, she failed to bring up her dental appointment.
The employer interviewed Bernaldez the next day. She did not deny leaving early and said she had simply forgotten to get permission.
After that, Bernaldez went on vacation from April 9 to May 15 and took two days of pre-approved leave until May 18.
On May 22, 2012, Bernaldez was fired, and the union filed a grievance.
Her employer, Revera Retirement, argued Bernaldez had left the premises during working hours without permission. That meant she had run afoul of the deemed termination provisions in the collective agreement.
In view of the fact that deemed termination provisions are designed to be strictly interpreted, there was little room for the arbitrator to lessen the penalty, according to her bosses.
The union described the case as “tragic,” saying Bernaldez had been working for the company for 23 years, with no significant record of discipline.
However, whatever subjective interpretation one chose to put on her circumstances, objectively Bernaldez was entitled to take unpaid emergency leave under section 50 of the Employment Standards Act (ESA). And section 74 of the ESA acts to prevent employers from making reprisals against workers who exercise their rights under the ESA.
Unions and employers cannot contract out the standards in the ESA. In this case, that meant that the employer could not fire Bernaldez for accessing emergency unpaid leave provisions under the ESA to go to the dentist, the union went on to say.
The arbitrator agreed. Without access to the emergency leave provisions in the ESA, the employer would be within its rights to fire Bernaldez under the deemed termination provisions in the contract, said the arbitrator.
And, since it was operating a retirement home, Revera Retirement had a legitimate interest in ensuring employees were present during working hours.
For workers employed in workplaces that regularly employ 50 or more workers, the right to unpaid emergency leave under the ESA is clear.
The ESA obliges workers to advise their employer they intend to take leave under the ESA. However, the act also says if workers are unable to notify the employer before starting their emergency leave, they are required to let the employer know as soon as possible after starting the leave.
This means, the arbitrator said, that taking the leave is not contingent on employer consent. Some discipline may be awarded for failure to provide proper notice but there can be no discipline for taking a qualified, unpaid emergency leave under the ESA.
As the Ontario Court of Appeal explained in London Machinery Inc. (2006): "By separating the entitlement to the leave from the notice requirement, it seems that the legislature did not intend to make the failure to provide notice grounds to disqualify the employee from taking the leave. This then leads to the conclusion, as set out in the (Employment Standards Branch) Policy Manual, that (the employee) could be disciplined for failing to give notice, but he did not lose his entitlement to the emergency leave. As he had an absolute right to the emergency leave without the need for authorization from the company, he could not have been terminated for being absent without such authorization."
