Canadian Employment Law Today

6 | September 17, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Employer suspected employee didn't intend to return « from Fired on page 1 request for an educational leave of absence running from June 30 to Sept. 1 of that year. Mellquist said she would be advancing her knowledge in open water studies and getting recertified for first aid and cardiopulmonary resuscitation. Temple Gardens denied the request because another lifeguard had re- quested a leave of absence for a similar time period and the spa didn't want to risk being short lifeguards and closing the pool. Shortly thereafter, Mellquist made another leave request, this time for the period of May 1 to June 1 for training in Indonesia to be a level 1 yoga teacher. Temple Gardens offered yoga classes and Mellquist was interested in teach- ing yoga there. e following week, Mellquist altered her request for the period of May 18 to June 5, so she could work in her vacation time for part of the leave. e request wasn't approved, so Mellquist submitted another request, this time for May 1 to June 2. Temple Gardens ap- proved this request and Mellquist was sched- uled to return to work on June 5. unexpected opportunity led to request for extension Mellquist travelled to Indonesia for the yoga training. While there, communication was difficult, without telephone access and lim- ited Internet access. She successfully com- pleted her level 1 yoga teaching certification and did so well her instructor asked her if she would be interested in staying to complete level 2 training at no extra cost. Attaining such a level would set her apart from many others. Mellquist was overwhelmed and surprised at this development and only had a matter of hours to decide before her scheduled flight to return home. She contacted her mother to help change her travel arrangements and con- tact Temple Gardens. On May 30, her flight was changed so she would arrive in Regina on July 8. When Mellquist's mother contacted Tem- ple Gardens, the shift supervisor referred her to the general manager, who refused to extend the leave as he needed a written re- quest. Mellquist then sent an email formally requesting an extension until July 14, but the general manager responded by asking if she still had a valid airline ticket to return to work as originally agreed upon. Mellquist didn't see the relevance of the question, so she didn't answer and reiterated her request for an ex- tended education leave. e spa's response was that, due to the short notice, her failure to answer the question about her airline ticket and the demands of its business, her request for an extension was de- nied. Temple Gardens felt without Mellquist back, it would be in danger of not having enough lifeguards to operate the pool. It also suspected Mellquist didn't intend to return. It went on to say that if Mellquist didn't return to work on June 5 as agreed, her "continued employment will be placed in jeopardy." When Mellquist didn't return to work on June 5, Temple Gardens found a replacement for her, as well as her other shifts for the rest of the month — though it was difficult. It was able to maintain enough lifeguards to avoid closing the pool throughout the rest of Mel- lquist's absence. However, on June 12, Temple Gardens terminated Mellquist's employment for failing to report to work at the conclusion of her approved leave of absence. e board noted that an employer's ex- pectation that the employee will attend work regularly was "implicit in every employment relationship," because an absent worker means the employer usually must deal with increased cost and extra effort to cover for the missing worker. e board agreed with Temple Gardens that Mellquist provided short notice for the extension, though since Mellquist wasn't scheduled to work until June 5 — three days after the official end of the leave — the request on May 30 was a week in advance. ere was no evidence any more notice than that would have made a difference in rescheduling the lifeguard shifts, said the board. e board found the shift supervisor was first contacted and knew about Mellquist's potential absence immediately on May 30, but was told to hold off on finding coverage. Also, though the notice was only a week in ad- vance, Mellquist informed Temple Gardens as soon as possible, given the fact it was an unexpected development and she was in an area with limited communication. "e purpose of providing notice is to per- mit the employer time to determine if cover- age is available, not to hold off finding cover- age," said the board. e board also found that although it was an "inconvenience and chal- lenge" to accommodate the leave request, this would be the case for any leave request. How- ever, it was still provided for in the collective agreement. If there was really a risk of having to shut down the pool, it didn't make sense to hold off on finding coverage when it was first known Mellquist wouldn't be returning as scheduled, said the board. e board also found the general man- ager's question about a valid return ticket was "a direct attack" on Mellquist's honesty, without inquiring more about the education- al opportunity or tying it to the demands of the business. Mellquist's failure to answer the question was reasonable, as she was focused on the leave extension. e reality was — as Temple Gardens later found out — Mellquist originally had a return ticket for early June and only changed it when the new training opportunity came up. Temple Garden's belief she was being dishonest and hadn't intended to return was unfounded, and its reasons for denying the request weren't reasonable, said the board. However, the board found that, regard- less of the reasonableness of the denial for a leave extension, Mellquist had an obligation to comply with instructions and attend work. Mellquist had agreed to the terms of the original leave of absence and didn't report to work on June 5, 2013, as per those terms. is amounted to insubordination and warranted discipline, said the board. Mellquist had a clean disciplinary record over more than two years with Temple Gar- dens and the spa suffered no economic loss from her absence, as it was able to cover her shifts. In addition, its assertion she was dis- honest was false and mitigated Mellquist's penalty, said the board. Temple Gardens was ordered to reinstate Mellquist with compensation 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 Carswell- Sask 315 (Sask. Arb.). A proper workplace violence policy and prevention plan will have served an informational and educational purpose. Again, the key to informing management and staff is through ef- fective communication and providing ample opportunity for training. Provincial legislation generally requires that workplace violence policies and prevention plans must be in writing and made readily available to all employees. Training programs should include information on how to recognize violent situations, procedures and controls for protection, proper response techniques and how to obtain assistance, and procedures for reporting violent incidents. e underlying lesson to be learned from both questions is the best way to deal with work- place violence and harassment is for employers to ensure that workplace policies comply with their governing legislative requirements. For more information see: • Robichaud v. Brennan, 1987 CarswellNat 907 (S.C.C.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com. « from asK an eXPerT on page 2 Comply with OHS regulations

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