Employee wasn't able to contact employer after being sent to jail for several months
A New Brunswick employer has been ordered to reinstate an employee it fired for abandonment of position after the employee was sent to jail for six months without notifying it.
Paul Lynch worked in the regional laboratory at the Doctor Everett Chalmers Hospital in Fredericton, N.B., for Horizon Health Network. He was hired in 2004 and his job duties involved cleaning and sanitizing the lab and protecting medical samples from contamination.
Lynch had two instances of discipline on his record — a written reprimand for having alcohol in his possession in the workplace, and a four-day suspension for misusing sick leave that Lynch claimed was a miscommunication with his supervisor.
On Nov. 11, 2015, Lunch hit and damaged a road sign while driving and left the scene. Alcohol was a factor and the next day, police identified him and said he could either appear voluntarily in court the following day or be arrested.
Lynch decided he would appear voluntarily and told a co-worker at work that the following day “if I didn’t show up for work, it will be because I’m in jail.”
Lynch was charged with having care and control of a vehicle while impaired, to which he pleaded guilty. Because his actions caused an accident and property damage, the judge ordered Lynch held in custody at a correctional centre in Saint John, N.B., until his sentencing on Dec. 29. No one was with him at the hearing, so there was no one who could advise Horizon of what happened.
On Nov. 16, both Horizon’s regional manager and human resources advisor tried to contact Lynch on his cellphone to find out why he wasn’t at work, but neither were successful as he was in custody. Two days later, with still no word from Lynch, they replaced him with a casual employee on a continuing basis. It was a difficult situation because they needed trained workers to perform Lynch’s duties.
The regional manager sent a letter to Lynch’s home address on Nov. 23 stating that he was on an unapproved leave of absence and if Horizon didn’t hear from him by Nov. 25, he could be disciplined, up to and including dismissal. The letter came back undelivered since Lynch wasn’t home.
Rumours about Lynch’s incarceration had begun to circulate among Horizon staff. However, because it had no contact from Lynch since his absence began, Horizon determined Lynch had abandoned his position. It terminated his employment effective Dec. 21.
On Dec. 29, Lynch was sentenced to six months in jail because it was his seventh conviction. He was sent to the same correction centre until Feb. 17, 2016, when he was transferred to a halfway house in Fredericton until his release on March 29.
Two days after Lynch’s sentencing, Horizon learned from a newspaper article that he had been convicted and jailed. The organization determined that Lynch should have applied for a leave of absence to cover his jail time, as he knew the steps from previous applications for leaves.
Lynch found out about the termination in mid-February when his caseworker called Horizon to determine if he had a work placement for when he transferred to the halfway house. Lynch then called his union — the Canadian Union of Public Employees, Local 1252 (CUPE) — which grieved the dismissal and specifically pointed to the collective agreement provision that stated leaves of absence could be granted at the discretion of the hospital.
Adjudicator John P. McElvoy noted that “abandonment” involves “a conscious and voluntary decision with known consequences.” However, when Lynch was remanded to custody immediately after his conviction, he was unable to contact Horizon, as he was only allowed to contact his lawyer and the ombudsman. In addition, when his caseworker contacted Horizon, he wasn’t allowed to speak with the employer.
McElvoy found that while Horizon officially learned of Lynch’s incarceration on Dec. 31, 2015, it was aware of rumours circulating amongst employees, some of who knew Lynch was in jail, before then. However, it sent the warning and termination letters to Lynch’s home address — where he would be unable to get it if the rumours were true — and made the decision to terminate him without expanding its attempts to find out the situation.
“It would have been relatively easy for the employer to communicate with Lynch once the rumours of his arrest were known,” said McElvoy. “Had the rumour been that Lynch was in hospital, one wonders if the employer’s response would have been the same.”
Adjudicator McElvoy also found that since there were trained casual employees available to fill in for Lynch, there was no real evidence that Horizon’s operations suffered from Lynch’s absence.
