Canadian Employment Law Today

CAse iN PoiNt: WRONGFUL DISMISSAL 4 Canadian HR Reporter, a Thomson Reuters business 2014 EMPLOYERS HAVE an invested interest in ensuring their workforce maintains acceptable levels of absenteeism. Too much absenteeism can have several negative effects, including increased costs to replace absent workers, decreased productivity, and low employee morale — not too mention the concern of having employees who are dishonest. Many employers have attendance management programs to ensure absenteeism doesn't become a problem and make sure employees aren't abusing sick leave. But abuse of sick leave can become a grey area if there's a disconnect between employers and employees as to what warrants sick leave. Before calling an employee on the carpet for improper use of sick leave, an employer should fully understand the reasons the employee is off work — and be careful not to act too hastily. BACKGROUND Employer too suspicious of medical leave following rejection of vacation request Confusion over vacation request led to stress and anxiety for mine worker; worker observed doing landscape work while on medical leave for stress A sAsKATCHewAn employer did not have just cause to dismiss an employee who was observed doing landscape work while on medical leave for stress, an arbi- trator has ruled. Steve Fonstad began employment as a labourer with Mosaic Potash, a potash mine operator near Colonsay, Sask., in October 2007. He was eventually pro- moted to the position of rehab operator, a position which involved operating a large machine underground which ran a scoop behind the mining machine that cut rock. Fonstad had a clean disciplinary record with Mosaic. Mosaic had a common practice for employees to follow when they took va- cation leave. Employees were required to complete an absence authorization form, which described the period of time for which the request was being made. e employee submitted the form to a super- visor for approval, who then forwarded it to the superintendent for fi nal approval. On May 8, 2012, Fonstad completed an absence authorization form request- ing vacation leave on May 22 and return- ing May 28. e reason for the request was that he wanted to attend his grand- mother's birthday celebration during that period. His supervisor initially approved the request and passed it along to the su- perintendent. Fonstad also had a wedding he wanted to attend in June, so on the same day he decided to complete another form re- questing vacation from June 7 to 14. He submitted the second form to a diff er- ent supervisor, who also approved it and forwarded it to the superintendent. He later testifi ed that the fi rst supervisor had already left the mine and the second su- pervisor was there at the end of his shift, which is why he gave the second form to a diff erent supervisor. Vacation confl ict However, Mosaic had a vacation shut- down scheduled in July and employees were required to keep 80 hours of vaca- tion time available to use during the shut- down. Fonstad had 120 hours of vacation time available, but his two requests to- taled 70 hours. When Fonstad's requests were processed, his June vacation request was cancelled. Fonstad told his regular supervisor he preferred to cancel the May request and take the June vacation, so the supervisor said he would take care of it. However, Fonstad later received documentation approving both vacation requests. Confused, Fonstad went to the HR department for an explanation. He then met with his supervisor, who advised him it was an error and his May leave wasn't approved. He asked why both requests were approved, but the supervisor just said he couldn't take both. According to Fonstad, the supervisor became loud and intimidating, making him upset. He said he was going to HR about the way he was being treated. Feeling stressed the next day, Fonstad felt he couldn't go underground and op- erate heavy machinery safely in the mine. He decided to take his one personal day provided for in the collective agreement. He called the mine before his shift and informed the second supervisor he was taking the day off for personal reasons, which followed protocol. e supervisor later called back to check on him, as he was concerned about him after his reac- tion to the vacation request confusion. Fonstad's next scheduled shift was on May 22, the fi rst day of his original vaca- tion request. He was still feeling stressed and he was also experiencing pain, so he called in before his shift and said he wasn't coming in to work. e supervisor was suspicious that Fonstad was using sick leave to get the week off that he origi- nally wanted, and told Fonstad "we're not taking it" and "we can't accept this." at day, Fonstad saw his doctor, who recommended he take three weeks off work. He stayed home and didn't go to his grandmother's birthday party that week. He called Mosaic's occupational health nurse and reported he would be off work for three weeks due to stress and situational anxiety stemming from confl ict with "people at work," as well as health problems for which he would be getting tests done the following week. He then sent Mosaic a doctor's note stating he would be off work for three weeks "due to medical reasons." A couple of weeks later, Fonstad pro- On the fi rst day of his rejected vacation request, the worker called in sick because of stress and pain. The supervisor was suspicious that the worker was using sick leave to get the week off he originally wanted.

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