Canadian Employment Law Today

6 | July 22, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Cases and Trends had with its employees allowed for various types of leave. Over the course of his career with Safeway, Cahoon took several leaves of absence. Safeway was aware that Cahoon sometimes worked full-time in Fort McMurray, Alta., driving heavy equipment, and that Cahoon had taken leaves of absence at various times since 2012 to work that job. However, Cahoon was entitled to take the leaves under the collective agreement so Safeway allowed it. By June 2013, Cahoon had exhausted the various leaves to which he was entitled under the collective agreement, except for one that had just been negotiated into the agreement two months earlier. is leave was an educational leave that allowed employees with four or more years of service to take up to one year of leave to attend "an accredited educational institution." e leave could only be used once by an employee and only one employee per store would be granted it at a time — unless the store had more than 40 employees, which would open up another spot. Employees were prohibited from working for a competitor during the leave. Cahoon decided to apply for one year of educational leave and told Safeway he intended to attend a local college. His request was denied twice, but he persisted and finally Safeway agreed to grant him an educational leave from September 2013 to September 2014. e union and Safeway also negotiated a six-week leave of absence and vacation before Cahoon's educational leave began. Employer reluctant to grant leave but relented Safeway's letter of approval for the educational leave said that although there were operational issues, the company decided to allow it since it was a one-time thing. e letter stipulated Cahoon would be expected back at work during the first week of September 2014 and he would also be expected to provide evidence of his attendance at college. Cahoon planned to attend the college's plant operator program, but found out it was full. After discussing things with a school counsellor, Cahoon decided to attend the college anyway, taking three classes — two history and an English class. Cahoon paid his college tuition in advance but just before he started classes in early September, his doctor told him he needed to have eye surgery. He had been having problems with his eyes and had had previous surgeries, so it wasn't unexpected. e surgery was scheduled for Sept. 26, so Cahoon decided to withdraw from college since he wouldn't be able to attend for several weeks. Cahoon didn't attend any classes and contacted the admissions officer at the college in November 2013 to say he was withdrawing for medical reasons. e college refunded most of his tuition. Employer not aware of employee's withdrawal from college However, Cahoon didn't inform Safeway or the union of these events and they assumed he was attending college. After spending four weeks recovering from the surgery, Cahoon began working full-time with the Alberta employer with whom he had worked on his previous leaves of absence from Safeway. On Jan. 6, 2014, Safeway's director of human resources wrote to Cahoon and requested a copy of his transcripts from the Fall 2013 term at the college. Cahoon replied three weeks later with a physician's letter stating he was unable to physically complete the courses. e letter described the eye surgery and indicated Cahoon was "able to return to his usual activities" on Oct. 23 but was unable to attend school before that date. Safeway responded by reminding Ca- hoon that the "spirit and intent" of the leave was for Cahoon to attend an educational institution. e company asked the doc- tor when Cahoon was informed of the eye surgery, whether it prevented him from at- tending school, and what other restrictions he had. It also asked Cahoon why he didn't inform Safeway once he knew he couldn't "act on the intent of the educational leave" and why he couldn't have returned to work on Oct. 23. e company concluded by saying it considered Cahoon to have aban- doned his position and if he didn't supply information justifying his actions by Feb. 21, his employment would be terminated. Cahoon didn't answer as to when he learned of his surgery and said he attended classes beginning on Sept. 4. He also said he was granted leave until September 2014 and the letter of approval didn't say to contact Safeway in case of a medical condition. Finally, he said he didn't attend classes after Oct. 23 because his medical issues had caused him to fall too far behind. Cahoon also indicated he couldn't provide proof of attendance in the Fall term or enrolment in the Winter term because he had withdrawn from college. Safeway informed Cahoon that if he couldn't provide proof that he had enrolled in and attended classes, it would conclude that he took the educational leave to work elsewhere — as on his previous leaves — which would breach its trust and lead to his dismissal. Cahoon provided a medical document to Safeway on March 7, 2014, but it didn't satisfy Safeway's requirements. Cahoon's employment was terminated three days later for "taking an educational leave with false intentions," which "completely severs the trust relationship we must have with our employees." e arbitrator noted that Cahoon "had to be aware that a collision between his personal interests in maintaining a high- wage job in Alberta and his capacity to fulfill his employment responsibilities to (Safeway) was likely inevitable," especially when he exhausted his entitlement of leaves which he had previously used to work in Alberta. ough he had the right to work elsewhere while taking a leave, he had an obligation to act honestly and responsibly to Safeway, his employer of 35 years, said the arbitrator. e arbitrator found that it was unlikely Cahoon intended to further his education. Instead, it was more likely he wanted to use the one type of leave he had left to continue working full-time in Alberta. Cahoon knew he was required to attend an educational institution during his educational leave and Safeway would monitor his progress, which was made clear in the approval letter, said the arbitrator. e arbitrator also found Cahoon tried to ignore or deflect Safeway's inquiries about his schooling during the leave, though he knew he was required to report his withdrawal from college. All of this added up to dishonesty. "(Cahoon's) conduct amounted to wil- ful refusal to accept responsibility for his actions," said the arbitrator. "Worse, he has expressed no apology or remorse for his actions and does not appear to recognize the seriousness of his miscon- duct." 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 responsibilities for both. is was a conscious breach of his duty to Safeway, which he later lied about when he said he attended classes before his operation. ough Safeway gave him an opportunity to explain the situation, Cahoon continued his attempts to mislead Safeway, said the arbitrator. e arbitrator upheld the dismissal, 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 CarswellOnt 1391 (B.C. Arb.). « from STAY IN SCHOOL on page 1 Employee required to report withdrawal from classes

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