Canadian HR Reporter

CanaDian hr reporter october 6, 2014 EMPLOYMENT LAw 7 Fired lifeguard rescued in arbitration By Jeffrey r. Smith a SaSKatchewan employer should not have terminated an employee who asked for an ex- tension of leave while overseas, an arbitration board has ruled. Megan Mellquist, 19, was hired by Temple Gardens Mineral Spa in Moose Jaw, Sask., in early 2011. At the facility's mineral water pool and spa, one lifeguard was required for every 50 people in the pool. If there weren't enough lifeguards, the pool had to close. Temple Garden's collective agreement included a provision allowing employees with two years of employment to request a one-time unpaid leave of absence for education upgrading or train- ing, lasting up to one year. At least one month's notice was required. An unpaid leave of absence "for legitimate personal reasons" last- ing up to three months was also allowed, as long as the employee didn't work elsewhere. In April 2013, Mellquist made a written request for an educational leave of absence running from June 30 to Sept. 1 of that year. But Temple Gardens denied the re- quest because another lifeguard had requested a leave of absence for a similar time period. Shortly thereafter, Mellquist made another leave request, this time for the period of May 18 to June 5 for training in Indonesia to become a level-one yoga teacher. e request wasn't approved so Mellquist submitted another request, for May 1 to June 2. Tem- ple Gardens approved this request and Mellquist was scheduled to return to work on June 5. While in Indonesia, Mellquist had limited phone and Internet access. And after she completed her yoga teaching certification, her instructor asked her to stay on to complete level-two training at no extra cost. Mellquist only had a matter of hours to decide before her sched- uled flight to return home. She contacted her mother to help change her travel arrangements and contact Temple Gardens. On May 30, her flight was changed so she would return on July 8. When her mother contacted Temple Gardens, the general manager said he needed a written request. Mellquist sent an email requesting an extension until July 14, but the general manager then asked if she still had a valid airline ticket to return to work on the date originally agreed upon. Mellquist didn't see the rele- vance of the question so she didn't answer and reiterated her request for an extended education leave. The spa refused the exten- sion due to the short notice, Mellquist's failure to respond about the airline ticket and the demands of its business. Temple Gardens felt it would be in dan- ger of not having enough life- guards to operate the pool and it also suspected Mellquist didn't intend to return. e spa went on to say that if she didn't return to work on June 5 as agreed, her "continued employment will be placed in jeopardy." When Mellquist didn't return on June 5, Temple Gardens found a replacement for her shift, as well as her other shifts — though it testified this was difficult — and was able to avoid closing the pool throughout the rest of her absence. However, on June 12, Temple Gardens terminated Mellquist's employment for failing to report to work at the end of her approved leave. Board agrees and disagrees The arbitration board agreed with Temple Gardens that Mel- lquist provided short notice for the extension, though since Mel- lquist wasn't scheduled to work until June 5 — three days after the official end of the leave — the re- quest on May 30 was one week in advance. There was no evidence any more notice than that would have made a difference in rescheduling the lifeguard shifts, said the board. e shift supervisor was first contacted and knew about Mel- lquist's potential absence on May 30, but was told to hold off on finding coverage, said the board. And Mellquist informed Temple Gardens as soon as possible. "e purpose of providing no- tice is to permit the employer time to determine if coverage is avail- able, not to hold off finding cover- age," said the board. Although it was an "inconve- nience and challenge" to accom- modate the leave request, it was still provided for in the collec- tive agreement, said the board. And if there really was a risk of shutting down the pool, it didn't make sense to hold off on finding coverage. e general manager's question about a valid return ticket was "a direct attack" on Mellquist's honesty, without inquiring more about the educational opportu- nity or tying it to the demands of the business, said the board. Mellquist's failure to answer the question was reasonable, as she was focused on the leave extension. As Temple Gardens later found out, Mellquist originally had a re- turn ticket for early June and only changed it when the new training opportunity came up. e spa's belief she was being dishonest and hadn't intended to return was unfounded, and its reasons for denying the request weren't rea- sonable, said the board. However, Mellquist had an obligation to comply with in- structions and attend work, said the board. She had agreed to the terms of the original leave of ab- sence and didn't report to work on June 5, as per those terms. is amounted to insubordina- tion and warranted discipline, said the board. But Mellquist had a clean disci- plinary record over more than two years with Temple Gardens and the spa suffered no economic loss from her absence, as it was able to cover her shifts. In addition, its assertion she was dishonest was false and mitigated Mellquist's penalty, said the board. Temple Gardens was ordered to reinstate Mellquist with compen- sation for loss of pay and benefits, with a warning that any absence without satisfactory reasons may be subject to discipline up to and including dismissal. For more information see: • Temple Gardens Mineral Spa Inc. and RWDSU (Mellquist), Re, 2014 CarswellSask 315 (Sask. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. CPASource.com CPAs are Canada's most knowledgeable, skilled and respected accounting and business professionals. And this is where to find them. HIRE A PRO.

• Cover