Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS contacted him, saying he had been identified and could either appear voluntarily in court the following day or be arrested. Lynch decided he would appear voluntarily and told a co-worker at work that the following day, "If I didn't show up for work, it will be because I'm in jail." Lynch was charged in court with having care and control of a vehicle while impaired, to which he pleaded guilty. Because his actions caused an accident and property damage, the judge or- dered Lynch held in custody at a correctional centre in Saint John, N.B., until his sentencing on Dec. 29. No one was with him at the hearing, so there was no one who could advise Horizon of what hap- pened. On Nov. 16, both Horizon's regional manager and human re- sources advisor tried to contact Lynch on his cellphone to find out why he wasn't at work, but weren't successful as he was in custody at the time. Two days later, with no word, they replaced Lynch with a casual employee on a continuing basis. It was a difficult situation because they needed trained workers to perform Lynch's duties. The regional manager sent a letter to Lynch's home address on Nov. 23 stating that he was on an unapproved leave of absence and if Horizon didn't hear from him by Nov. 25, he could be disciplined, up to and including dismissal. The letter came back undelivered since Lynch wasn't home. At this point, rumours about Lynch's incarceration had begun to circulate among Horizon staff. However, because it had no con- tact from Lynch since his absence began on Nov. 12, Horizon deter- mined Lynch had failed to apply for a leave of absence and then abandoned his position. It termi- nated his employment effective Dec. 21. On Dec. 29, Lynch was sen- tenced to six months in jail be- cause it was his seventh convic- tion. He was sent to the same correction centre until Feb. 17, when he was transferred to a half- way house in Fredericton until his release on March 29, 2016. Two days after Lynch's sentenc- ing, Horizon learned from a news- paper article, that he had been convicted and jailed. The organization determined that Lynch should have applied for a leave of absence to cover his jail time, as he knew the steps from previous applications for leaves. Lynch found out about the ter- mination in mid-February when his caseworker called Horizon to determine if he had a work place- ment for when he transferred to the halfway house. Lynch then called his union — the Canadian Union of Public Employees, Local 1252 (CUPE) — which grieved the dismissal and specifically pointed to the col- lective agreement provision that stated leaves of absence could be granted at the discretion of the hospital. Adjudicator John McElvoy noted that "abandonment" gen- erally involves "a conscious and voluntary decision with known consequences." However, when Lynch was remanded to custody immediately after his conviction, he was unable to contact Horizon, as he was only allowed to contact his lawyer and the ombudsman. In addition, when his caseworker contacted Horizon, he wasn't al- lowed to speak with the employer. McElvoy found that while Ho- rizon officially learned of Lynch's incarceration on Dec. 31, 2015, it was aware of rumours circulating amongst employees, some of who knew Lynch was in jail. However, it sent the warning and termination letters to Lynch's home address — where he would be unable to get it — and made the decision to terminate him without expanding its attempts to find out the situation. "It would have been relatively easy for the employer to commu- nicate with Lynch once the ru- mours of his arrest were known," said McElvoy. "Had the rumour been that Lynch was in hospital, one wonders if the employer's response would have been the same." McElvoy also found that since there were trained casual employ- ees available to fill in for Lynch, there was no real evidence that Horizon's operations suffered from Lynch's absence. Ultimately, McElvoy deter- mined Lynch did not willingly abandon his position since he had been unable to communicate with Horizon, and Horizon could have found out what was going on with a better effort at communication. Horizon was ordered to rein- state Lynch with compensation for lost wages and benefits from Sept. 13, 2016 — the time before featuring his six-month leave of absence without pay — and more than five months deducted for Lynch's lack of efforts to mitigate his loss of income or communi- cate with Horizon. See Horizon Health Network and CUPE, Local 1252 (Lynch), Re, 2016 CarswellNB 544 (N.B. Lab. and Emp. Bd.). < Jailed pg. 1 Employer sent warning, termination letter to home address Photo: sakhorn (Shutterstock) "It would have been relatively easy for the employer to communicate with Lynch once the rumours of his arrest were known."

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