New Brunswick seniors’ home worker grieves after employer refuses reinstatement after leave

Registered attendant had no intention to resign: CUPE

A registered attendant (RA) at the Rocmaura Nursing Home in Saint John, N.B., went on education leave, but then decided she wanted to return to her job early.
Chantelle Dezainde worked at the home in a permanent part-time basis. In July 2016, she left to attend the office-administration program at the Nova Scotia Community College as a full-time student. Dezainde’s expected return date was June 30, 2017.
But in October, Dezainde advised Kim Roberts, director of nursing, that she had insufficient funds to continue her schooling and she wished to return to Rocmaura.
A meeting was held on Oct. 26, but many “mental-health issues” were brought up by Dezainde, according to Roberts, which made her later question if Dezainde was ready to return. 
In a letter sent to Dezainde on Nov. 2, Roberts expressed concern: “After listening to your voicemail message left for me on Oct. 18, I had grave concerns about your ability to appropriately discharge your duties. You will remain on your prior approved leave of absence until such time I am convinced that you are safely able to return to work. I strongly encourage you to take advantage of our free and confidential employee assistance program.”
During this time, Dezainde worked at another nursing home facility from December to July 16, 2017, when she was fired. 
After she was deemed to have abandoned her position at Rocmaura by not contacting the employer, her job was posted and filled by another employee. 
In August 2017, Dezainde showed up unannounced at Rocmaura and told Holly Jones, the new director of nursing after Roberts’ retirement, that she “loved, loved, loved” working at Rocmaura and wanted to return. 
Dezainde later dropped off a medical note from a nurse practitioner that stated: “The above patient is able to return to work/school.”
The unplanned meeting was “distressing” to Jones, who wrote a letter to Dezainde on Sept. 5: 
“I have since reviewed your file and I see that your leave of absence ended on June 30, 2017. Rocmaura therefore expected you back to work on July 1, 2017. As you know, you did not return to the building until Aug. 3. Rocmaura therefore deemed you to have resigned your position on July 6 pursuant to article 15.03(c) of the collective agreement. Furthermore, I have concerns around your professional and ethical judgment and disrespect for myself, your director of nursing, when I learned that you had made several misrepresentations to me on Aug. 3 and such conduct is not consistent with Rocmaura’s values and practices.”
Dezainde and the union, the Canadian Union of Public Employees (CUPE), Local 1603, grieved the dismissal on Dec. 2. 
The union also argued that Dezainde’s education leave was changed to a medical leave after the Oct. 26, 2016, meeting and there was no intention to resign her position.
The employer countered and said, according to the collective agreement, in Article 15.03(c), an employee was deemed to have resigned if “absent from work in excess of five working days, without notifying the employer.”
Arbitrator Robert Breen upheld the grievance and ordered Rocmaura to hire back Dezainde but “with zero seniority on the seniority scale.”
As well, Dezainde must “produce to Rocmaura a medical note confirming that she is medically able to perform the job responsibilities of an RA position, prior to any assignment of RA work made to her at Rocmaura,” said Breen.
Part of the blame for the confusion was based on Dezainde’s “failings in forthrightness with Jones in her unannounced arrival at Jones’ office in August 2017,” said Breen, as well as, “Dezainde’s failings in memory as to why she plainly felt compelled to produce a summary medical note confirming an ability to return to work/school.”
Because the employer filled Dezainde’s old position, it would be unfair to bump that employee out, according to Breen. 
“Further, this arbitrator does not accept that Dezainde can simply rely on continuing failures to notify of any status, and then in August 2017, demand the right to return to work with her full seniority restated,” said Breen.
Reference: Rocmaura Nursing Home and Canadian Union of Public Employees, Local 1603. Robert Breen — arbitrator. Justin Wies, Geneviève Gagné for the employer. Michael Davidson for the employee. Sept. 17, 2018.

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