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Why This Employer Prevailed Over an Employee’s Labour Complaint

By April 13, 2018August 17th, 2020Employment Law

Attendance is an important part of the employment relationship.  The employer trusts that the employee will show up to work and work hard, and in return, the employer provides compensation and benefits.  Of course, we always include a section in our employment contracts that state the employee agrees to do their job to the best of their abilities.  In our policy manuals, we talk about attendance, attendance management, and what happens when things come up in life (as they do) when the employee can’t attend to their job – leaves of absence.

There are some job protected leaves of absence (personal emergency leave, parental leave) that the law requires employers to give to their employees.  For other types of leaves (long term medical leave or short term disability leave for example), employers are required to work with employees to find ways to help the employee recuperate and get back to their full duties.

We call that “accommodation.”

As we also say, accommodation is a two way street. Employers have certain obligations, but employees also have requirements to uphold. If employees don’t hold up their side of the bargain, then the leave of absence (the accommodation) may not have to be continued.

The Dairy Queen Case

Knowing that, let’s review a recent case that came out of the Ontario Labour Relations Board. An Ontario location of a Dairy Queen had an employee whose mother was diagnosed with cancer. The employee had previously taken some days off to help her mother.  This wasn’t too much of a problem for Dairy Queen, since it was a mostly a warm-weather operation, and the employee had lots of time off during the winter months. But at the same time, the employee was a bit of a gossiper (workplace harassment) and regularly extended her winter leave of absence without permission from her employer.

In August 2016, the employee asked her employer for a family caregiver leave for four weeks to help her mother.  This is a job-protected leave for all workers in Ontario, where they can take unpaid time off to care for a parent, step-parent, or foster parent of themselves or their spouse – and get their job back when the caregiving is complete.

We all know Dairy Queen – and we all know how busy Dairy Queen can get in the hot days of August.  Since this was the busiest time of year for the employer, letting that employee off work would have created a serious staffing problem for the store.

So, in keeping with the “two way street” compromise mentioned earlier, the employer asked the employee: “Instead of 4 weeks, can you take only 2 weeks off?” The owner of the Dairy Queen was prepared to deal with the scheduling issues for 2 weeks, but not 4 weeks.

What was the employee’s response? The employee resigned with one week of notice “based on your reaction to my situation.”

If that wasn’t enough, three weeks later (yes, a total of 4 weeks), the employee asked to be re-hired. As a good employer, Dairy Queen had her back but told her that her misconduct from before (gossiping, unapproved time off) would not be tolerated.  All seemed well for a few weeks.

By the beginning of October, one Dairy Queen manager had quit because of the gossip of the re-hired employee. As the employee had already been warned about gossiping in the workplace, the worker’s employment was terminated.

The terminated employee filed a complaint with the Ministry of Labour stating the termination was actually a reprisal — the employer punishing the employee — for requesting family caregiver leave that ultimately wasn’t approved.

When the issue of the caregiver leave was considered by the Ontario Labour Relations Board, the Board found that the employer did not deny the employee the right to the Family Carefiver Leave and therefore there was no discrimination.  The Board recognized that the employer was put in a difficult situation by the employee’s request, but the employer never denied the employee’s right to take the leave. The employer only wanted to reach a compromise with the employee during the busiest time of the year.

In fact, the Board noted that the employee actually walked away before the employer made a final decision on the request.

What was more was that the Board said that the employee wasn’t fully playing by the rules under the Employment Standards Act. Under section 49.3 of that law, an employee requesting Family Caregiver Leave is required to provide a medical certificate which states the family member who requires care (and that certificate has to be given by a qualified health practitioner, not just any person). The employee didn’t provide that medical information, and so the employer’s duty to provide the leave requested by the employee never kicked in.

Accommodation is a two-way street

We talk to lots of dentists who feel like their team members are sometimes running their offices, with the reasonable or not-so-reasonable requests they make.

This is one case that shows that the employer, acting reasonably, has always had the tools to efficiently operate their business.  If an employee needs unpaid time off, a conversation can be had between employer and employee in order to find the best solution for both parties.  Of course, there may be situations where the employee is not able to work (if they are raising a young child, or have been in a serious car accident, for example); and in those cases, full unpaid time off may be the case.

But for other instances that aren’t in the extreme, there are reasonable and legal ways to manage employee time off. If medical evidence can be requested by the employer, it should be requested.  If a compromise can be reached between employee and employer, those should be canvassed, discussed, and implemented.

Accommodation is a two-way street.  Employers and employee each have obligations to each other. There are many constructive and reasonable ways to manage your employees and ensure that your patients, clients, and customers are satisfied.

DMC