What to do if an employee's approved emergency leave elapses but doesn't return to work
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 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, including Saskatchewan, 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 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 the reasons for absence and the expected length of the absence. If an employee has to begin a personal emergency leave before notifying the employer, the employee must inform the employer as soon as possible. The failure to give notice, however, does not erase the employee’s right to emergency leave. An employer would be able to 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 — on a case-by-case basis — 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 the employee was warned that her job was at risk.
For more information see:
• Pinard v. Unity Insurance Brokers (Windsor) Ltd., 2005 CarswellOnt 701 (Ont. S.C.J.).
