Take it or leave it

Employees keen to take leaves of absence should be clear as to their reasons why

By Jeffrey R. Smith 

It’s not uncommon for employees to need to take a leave of absence from work. In fact, there are several circumstances that have now been enshrined in legislation in several provinces where employees are free to take leave and have their job protected when they get back.

However, if a situation doesn’t warrant job-protected leave, the employee may have to use vacation days. But even if she has a good reason to take the leave, it’s important to follow the employer’s proper procedure in requesting the leave. 

Most employees have family obligations they have to balance with work obligations. This can be especially difficult for employees who have families who live overseas because visiting them involves a big trip requiring more vacation days. It can also be a tougher situation if a family member living far away becomes sick or there are difficulties involved in travelling to a particular country. 

Early last year, an Ontario construction worker was laid off. Layoffs were normal for that time of year (January) and they usually lasted until around April. A month before he was laid off, the worker had asked for a leave of absence after Christmas. The worker didn’t say why but he intended to visit his family in Iran as his father was ill. He knew the trip would last a while because it would be difficult to leave Iran without getting proper papers first, which might take several weeks. He figured it would be a good time to go early in the New Year since he would likely be laid off for a few months. 

The worker’s supervisor told him to fill out a leave request form and give it to him, but the worker instead faxed the request to human resources, which didn’t handle such requests. As a result, the supervisor didn’t get any information and forgot about it, and the leave wasn’t officially approved. 

The worker was laid off in early January and a couple of weeks later left for Iran without the employer’s knowledge. However, instead of the layoff lasting a few months, there was work available and the employer recalled him shortly after he left the country. The employer was unable to contact the worker until more than a week later, when the worker texted his supervisor saying his father was in poor health, he was the primary caregiver and he needed to take a leave for one year. 

The employer rejected the leave request since he hadn’t gone through proper channels and hadn’t given it any warning he was leaving the country. After recalling all other employees who were junior to the worker, the employer dismissed the worker. 

An arbitrator found the worker didn’t make a proper leave request and hung the employer out to dry when it needed him back at work when he went to Iran without telling the employer. The worker also exaggerated the situation — he wasn’t the primary caregiver and his father’s health wasn’t as bad as he made it out to be. The dismissal was upheld: see Dufferin Concrete and TC, Local 230 (Feli), Re, 2015 CarswellOnt 19573 (Ont. Arb.). 

The worker obviously wanted to see his family in Iran, especially his sick father, and perhaps that would have been enough to deserve taking a leave of absence. However, he didn’t bother making a proper leave request and his employer didn’t even know he was gone until it tried to recall him to work after his layoff.

The employer was unable to plan for his absence when work became available, especially since the worker wanted to be off for a year. The worker was free to travel as he needed to and the option was his to not be available for work when there was some again, but since he didn’t really ask for a leave of absence, the employer could take it as an abandonment of his position.

A big part of the reason the dismissal was upheld was not just the worker’s failure to formally request a leave, but his dishonesty in trying to make it seem like his circumstances were dire when they weren’t.

Employees are entitled to leaves of absence, but such leaves don’t involve simply leaving the job behind. 

Latest stories