Worker knew he'd be away for months but was recalled to work three weeks later
An arbitrator has upheld the dismissal of an Ontario worker who left the country following a temporary layoff without telling his employer before he was recalled.
The worker was hired by Dufferin Concrete, a construction company specializing in paving based in Oakville, Ont., in September 2011 as a ready mix driver. His disciplinary record included a three-day suspension in November 2014 for operating a hand-held device while driving his company truck and engaging in an abusive and offensive exchange with a co-worker.
On Jan. 5, 2015, the worker was laid off due to a seasonal shortage of work. Such layoffs were common each January.
About a month prior to his layoff, the worker had asked his supervisor for a leave of absence to begin after Christmas. The worker had learned that his father in Iran was ill and he wanted to visit his family for the first time in 30 years. He knew that once he was in Iran it would take more than a month to obtain identification documents that would be necessary to leave again, so he estimated he would be there for three months, requiring a leave of absence. The supervisor told him to submit a request as soon as possible so he could pass it on.
After the layoff, the worker contacted his supervisor to see if his leave of absence had been approved. The supervisor hadn’t seen any request because the worker had apparently faxed it to the human resources department, which didn’t approve such requests. The worker said he would bring it in to the plant that day but didn’t.
On Jan. 18, the worker went to Iran to visit his family, expecting that he wouldn’t be recalled until April as had been the case in past years. Dufferin Concrete wasn’t aware of his trip and five days later recalled him from layoff with a return-to-work date of Jan. 26. Unsurprisingly, the company couldn’t reach the worker by telephone, so it sent him a registered letter on Jan. 28 advising him of his recall and directing him to contact the company by Feb. 5. The registered letter was returned with the notation “unclaimed.”
On Feb. 2, the worker contacted his supervisor with a text message from Iran saying his father was in poor health and he needed a leave of absence until January 2016. He mentioned the request he had faxed to HR and referred to “the emergency situations I was in I had to leave to look after my dad, I’m the only caregiver in the family.”
Dufferin Concrete didn’t grant the leave request because it wasn't considered a proper request and he hadn’t made it before he left for Iran. Though the worker claimed he had faxed a request to HR, the department didn’t have any record of it.
The union asked the company to not take any action until all of the employees who were junior to the worker had been recalled. By April, all employees had been recalled and the worker was still in Iran, so Dufferin Concrete discharged him on April 20.
According to the worker, when he contacted Dufferin Concrete, he violated an order to not contact anyone outside of Iran. As a result, he was imprisoned until late February. After he was released, he continued his efforts to get the necessary documents to leave Iran, which he received in early May. He booked a flight and flew back to Canada on May 26.
The arbitrator found that the worker made inquiries to his supervisor about a leave of absence and his supervisor explained the process, but he never submitted a request through the proper channels. The arbitrator also found that the worker never explained the situation in Iran and the difficulty he would have leaving once he got there.
The worker contacted the company once he knew he would be in Iran for longer than he originally thought, but the only explanation was in the form of a text message referring to an emergency medical situation with his family. It also wasn’t true that the worker was the only caregiver for his father, as he had a mother and two sisters in Iran.
“The purpose of the (worker’s) trip to Iran was not an emergency situation where (he) needed to urgently go to Iran to provide care to his father,” said the arbitrator. “Rather, the purpose of the trip was for the (worker) to visit his father and family, not to deal with a family emergency.”
