Worker quit after unsuccessful caregiver leave request, rehired and then fired for ignoring warnings relating to misconduct
An Ontario company that hired back a worker who quit after a caregiver leave request was denied and later fired her did not reprise against the worker but does owe her termination pay, the Ontario Labour Relations Board has ruled.
Debora Cabrera was hired to work at an Ottawa franchise location of fast food and frozen dairy product retailer Dairy Queen — operated by a company called Claudia Foods — in April 2013. However, things didn’t go very well before too long and there were issues with Cabrera’s conduct at work —she had a habit of gossiping about her co-workers to the point where her manager had to warn her several times about being a team player and not to gossip. Cabrera also regularly extended her annual winter leave without approval or notice.
The owner of Claudia Foods, Filomena Aprile, kept Cabrera employed for some time because she had invested time and money in Cabrera’s training on food handling and safety and hoped things would turn around.
In the winter of 2016, while Cabrera was on annual winter leave, her mother was diagnosed with cancer. When she returned to work at Dairy Queen, she requested five individual days off during the months of April to July to care for her mother. In early August, she requested a four-week family caregiver leave, but Aprile told her she couldn’t afford to lose an employee for the entire month of August — which was the busiest time of year for the store. Aprile proposed a compromise — the store would try to get by without her if she took a two-week leave.
A few days after Aprile suggested the compromise of a two-week leave — Aug. 5, 2016 — Cabrera emailed Aprile to tell her she was resigning from her job “based on your reaction on my situation.” Cabrera said her last day would be Aug. 13.
Cabrera left on Aug. 13, but three weeks later she emailed Aprile apologizing for her behaviour and asking to be returned to her position. She said she didn’t want to quit but needed to help her mother. Aprile agreed to give her another chance and rehired her on Sept. 12 with the warning that futher “bad behaviour” and gossip would not be tolerated in the workplace.
On Oct. 4, about three weeks after Cabrera was rehired, her manager reported to Aprile that the team leader at the store had quit her job because Cabrera had spread gossip about her in the workplace. This was the last straw for Aprile, and she told the manager to proceed with terminating Cabrera’s employment.
After Cabrera was terminated, she phoned Aprile to complain that it “wasn’t fair” she was let go. Aprile reminded her of the previous warning not to gossip but Cabrera didn’t heed it and continued with the inappropriate behaviour. However, Aprile was feeling generous and thought a fresh start could help Cabrera, so she offered a position at one of the other franchise locations in the area that she owned. Cabrera refused the offer and filed an employment standards complaint alleging Claudia Foods had engaged in a reprisal by denying her family caregiver leave.
An employment standards officer supported Cabrera’s claim and ordered Claudia Foods to pay Cabrera termination pay plus damages for pain and suffering. Claudia Foods applied to the Ontario Labour Relations Board for a review of the officer’s order to pay.
The board noted that the Ontario Employment Standards Act entitled employees to “a leave of absence without pay to provide care or support to an individual described in subsection (5) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition.” The relevant subsection (5) stipulated that the family member must be “a parent, step-parent or foster parent of the employee or the employee’s spouse.”
The board found that a four-week caregiver leave would have left the store in a tough situation — short-staffed during the busiest time of the year. After Cabrera initially inquired about a leave, Aprile suggested a compromise that tried to accommodate Cabrera’s need to care for her mother with the store’s need for her to work. However, Cabrera responded to this “dialogue” about a compromise by quitting her job before the employer could give a final answer.
In addition, the board noted that, while family caregiver leave is a right under the act, Cabrera didn’t live up to her part of legal requirement — providing a medical certificate stating that her mother had a serious medical condition requiring such care. Without proper medical information, the right to family caregiver leave didn’t kick in, said the board.
The board determined that Claudia Foods did not violate Cabrera’s right to family caregiver leave and her termination was not a reprisal for the leave request warranting damages for pain and suffering.
However, even though the board didn’t deem Cabrera’s termination a reprisal, it was still a termination without cause. Aprile offered Cabrera a position at one of her other stores in the Ottawa area, but there was no evidence presented on how close it was to Cabrera’s home or the hours of work the other position would entail. As a result, the board wasn’t prepared to determine if the offer was for reasonable alternate employment.
