Employer doesn't bend for yoga course

Extended educational leave leads to firing

Megan Mellquist was fired from her full-time position as a lifeguard at the Temple Gardens Mineral Spa in Moose Jaw, Sask., after she failed to return to work following a leave of absence.

Mellquist started working for the employer when she was 15. At the age of 18, she was granted an educational leave of absence to travel to Bali, Indonesia, to train as a Level 1 registered yoga teacher.

After successfully completing the level, however, Mellquist was approached by the owner of the yoga school and offered the opportunity to stay on for Level 2. The training fees would be waived and Mellquist’s housing and food would be provided free of charge. The offer was made just 18 hours before Mellquist was scheduled to fly home.

Mellquist was able to change her return flight for an additional fee. She sent an email to her manager at Temple Gardens requesting an extended leave to complete the Level 2 course. The employer asked Mellquist to provide a valid airline ticket for her return to Saskatchewan as originally planned. In a followup email, Mellquist did not address the request, testifying during arbitration she did not believe her original ticket was relevant to the extended leave.

Her request was refused, as the employer believed Mellquist had been dishonest about the course from the beginning and had no intention of returning to work. The refusal included references to the short notice of Mellquist’s request and her failure to provide the employer with proof of her original flight.

Mellquist chose to stay and complete the course without an extended leave of absence, returning to Moose Jaw on July 8, 2013. Four days later, she received a termination letter.

The Saskatchewan Joint Board, Retail, Wholesale and Department Store Union filed grievances on Mellquist’s behalf, grieving both the refusal of her request for an extended leave of absence and her termination. The union asked that she be reinstated and made whole.

The arbitration board — made up of chair William F.J. Hood, employer representative Fergie Reynolds and union representative Gloria Cymbalisty — found the employer was wrong when it denied Mellquist’s request for extended leave. While the board agreed the notice was short, it found Mellquist provided notice promptly given the circumstances.

The other reason for refusing the extension was Mellquist’s choice not to answer her manager’s question about her airline ticket. The board found this request was a direct attack on Mellquist’s honesty. Her manager doubted whether she had ever intended to return to work. The leave was therefore denied without any attempt to accommodate.

After hearing and seeing the evidence, the employer acknowledged that Mellquist was not

The board did find, however, that the opportunity to continue her studies did not detract from Mellquist’s obligations to the employer to attend work. Mellquist was found to have been insubordinate in her failure to return to work as agreed, though the board found termination to be excessive considering the circumstances.

"A key, if not the main and underlying, reason for the refusal and the termination was the employer’s mistaken belief the grievor lied," the board ruled. "We are of the view the employer’s unsubstantiated claim the grievor was dishonest is a mitigating factor in favour of the grievor for a lesser penalty."

The dismissal was substituted for a warning and the board ordered Mellquist be reinstated to the full-time position she held at the time of termination, adding she be made whole for the loss of pay, benefits and any seniority resulting from the dismissal.

Reference: Temple Gardens Mineral Spa and the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union. Arbitration board — William F.J. Hood, chair; Fergie Reynolds, employer; Gloria Cymbalisty, union. May 30, 2014.

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