Employee was stressed and took medical leave without filling out form
This edition of You Make the Call features a public works director who walked off the job during a busy time.
Kenny Sam was hired by the Tl’azt’en Nation, a First Nations community in north central British Columbia, in 2006 to be its public works director. He was responsible for the maintenance and operation of community infrastructures and capital projects, as well as supervising public works employees and preparing budgets and reports.
The Tl’azt’en Nation had a policy employees had to sign that stipulated any absence for more than five consecutive days without permission or a good reason would be considered a voluntary resignation. Employees were also required to call their supervisor first thing in the morning if they were going to be absent or late, and formal approval was required for leaves. In the case of medical leaves, a medical note was required for absences of more than three days.
In January 2010, the Tl’azt’en Nation’s water supply was found to contain e.coli bacteria amounts greater than safety standards. Sam was the only staff member who had a water treatment plant operator designation, so the Tl’azt’en Nation relied on him to be a leading figure on the team dealing with the crisis. It was a hectic time for the Tl’azt’en Nation council, and the executive director had to manage three departments after staff left.
On Jan. 29, 2010, Sam left work and told the chief and a band councillor that he was going to go on “stress leave or WCB” so he wouldn’t be fired. On Feb. 8, he faxed a medical note to the executive director that stated he was off for medical reasons. He didn’t fill out a leave application form because, though official procedure was to submit a form approval in advance, employees often did it when they came back. He also felt the medical note explained his situation enough. Sam applied to WorkSafeBC for benefits but was denied. He was later granted medical employment insurance.
The executive director did not consider the medical note to be sufficient due to its lack of information on why Sam couldn’t work or his expected return date. He didn’t hear from Sam, but made no attempt to contact him, feeling the onus was on Sam to inform the employer of his situation. The executive director drafted a letter on Feb. 15 that had no letterhead, but didn’t know if it was sent. Sam denied receiving it.
On March 29, the Tl’azt’en Nation issued a termination letter to Sam indicating that since it had received no communication since he “walked off the job,” it considered him to have violated its policies and procedures for leaves and abandoned his employment. An email to him several months later clarified that he had voluntarily quit.
You Make the Call
Did Sam abandon his employment?
OR
Was he unjustly dismissed?
If you said Sam was unjustly dismissed, you’re right. The adjudicator found there were no subjective or objective elements that suggested Sam intended to quit. The Tl’azt’en Nation did not have any idea whether Sam intended to return to work, but didn’t make any effort to communicate with him during his absence. Though it didn’t consider the medical note to be sufficient, it didn’t advise Sam of this and didn’t make any attempts to obtain the information it needed, said the adjudicator, noting that the executive director felt the onus was on Sam.
Since Sam didn’t receive any word indicating otherwise, from his perspective he had done enough to show he was on medical leave and had not abandoning his employment, particularly since he had told the chief and a councillor that he was going on stress leave, said the adjudicator.With the medical note submitted, Sam assumed he could fill out a leave form when he returned.
