Canadian HR Reporter

CANADIAN HR REPORTER July 13, 2015 EMPLOYMENT LAW 5 Jeffrey Smith Legal View RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 190,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 10/8/2014 3:40:37 PM Today's lesson? Stay in school B.C. worker on educational leave had eye surgery, never went to class, took other job A British Columbia employer had just cause to fire an employee who ended up working for another employer rather than attending school during an educational leave, an arbitrator has ruled. Geoff Cahoon was a general clerk at a Safeway store in Castlegar, B.C., hired in 1980. His seniority gave him the option of working full-time but he chose to work part-time. e company's collective agree- ment allowed for various types of leave and Cahoon used these to work full-time in Fort McMurray, Alta., driving heavy equipment, which Safeway was aware of. By June 2013, Cahoon had exhausted the various leaves to which he was entitled, except for a new educational leave, so he de- cided to apply and told Safeway he intended to attend a local college. Safeway agreed to grant him an educational leave from Septem- ber 2013 to September 2014. e letter of approval stipulated Cahoon would be expected back at work during the first week of September 2014 and he would be expected to provide evidence of his attendance at college. Cahoon paid his college tu- ition in advance but just before he started classes, his doctor un- expectedly told him he needed to have eye surgery. It was scheduled for Sept. 26 so Cahoon decided to withdraw from college. Cahoon didn't attend any class- es and contacted an admissions officer in November to say he was withdrawing for medical reasons. e college refunded most of his tuition. However, Cahoon didn't inform Safeway or the union and they as- sumed he was at college. After spending four weeks recovering from the surgery, Cahoon began working full-time for the same Alberta employer. On Jan. 6, 2014, Safeway's di- rector requested a copy of his transcripts from the fall college term. Cahoon provided a physi- cian's letter stating he was unable to physically complete the cours- es, outlining the surgery and indi- cating Cahoon was able to return to his usual activities on Oct. 23 but was unable to attend school before that date. Safeway responded by remind- ing Cahoon the "spirit and intent" of the leave was for him to attend an educational institution. e company asked the doctor when Cahoon was informed of the eye surgery, whether it prevented him from attending school and what other restrictions he had. Safeway also asked Cahoon why he didn't inform Safeway once he knew he couldn't "act on the in- tent of the educational leave" and why he couldn't return to work on Oct. 23. e company also said it con- sidered Cahoon to have aban- doned his position and if he didn't supply information justifying his actions, his employment would be terminated. Cahoon didn't say when he learned of his surgery but said he attended classes beginning on Sept. 4. He also said he was grant- ed leave until September 2014 and the letter of approval didn't say he had to contact Safeway in case of a medical condition. Calhoun also said he didn't at- tend classes after Oct. 23 because his medical issues made him fall too far behind. And he indicated he couldn't provide proof of at- tendance in the fall term or enrol- ment in the winter term because he had withdrawn from college. Safeway informed Cahoon that if he couldn't provide proof he had enrolled in and attended classes, it would conclude he took the educational leave to work elsewhere, which would lead to his dismissal. Cahoon provided a medical document to Safeway on March 7, but it didn't satisfy Safeway's re- quirements. His employment was terminated three days later for "taking an educational leave with false intentions" that "completely severs the trust relationship we must have with our employees." Arbitrator takes a look Cahoon "had to be aware that a collision between his personal interests in maintaining a high- wage job in Alberta and his ca- pacity to fulfill his employment responsibilities to (Safeway) was likely inevitable," said the arbitra- tor, especially when he exhausted his entitlement of leaves. And though he had the right to work elsewhere while on leave, Cahoon had an obligation to act honestly and responsibly to his employer. Cahoon knew he was required to attend an educational institu- tion and Safeway would monitor his progress, as this was made clear in the approval letter, said the arbitrator. Cahoon also tried to ignore or deflect Safeway's inquiries about the situation, though he knew he was required to report his with- drawal from college. All of this added up to dishonesty. "(Cahoon's) conduct amounted to wilful refusal to accept respon- sibility for his actions," said the ar- bitrator. "Worse, he has expressed no apology or remorse for his actions and does not appear to recognize the seriousness of his misconduct." e arbitrator found Cahoon applied for an educational leave of absence while working full-time for another employer in Alberta, knowing he couldn't meet his re- sponsibilities for both. is was a conscious breach of his duty to Safeway, which he later lied about when he said he attended classes. ough Safeway gave him an opportunity to explain, Cahoon continued his attempts to mislead Safeway, said the arbitrator. e arbitrator upheld the dis- missal, finding Safeway had just cause due to Cahoon's actions in his own self-interest and contrary to his duty to act in good faith. For more information see: • Sobey's West Inc. and UFCW, Local 1518 (Cahoon), 2015 Car- swellOnt 1391 (B.C. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com.

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