Another day, another case where I find myself scratching my head.
Here, a New Brunswick arbitrator Canadian Union of Public Employees, Local 1252 v Horizon Health Network (Zone 3), 2016 CanLII 96055 (NB LA) considered whether an employee who was sentenced to jail and who did not report for work or communicate with the employer for some 4 months had abandoned his employment.
On the facts of this case, the arbitrator found that he had not and he reinstated the employee with wages and benefits from September 13, 2016 until his reinstatement (the award is dated December 20, 2016).
The arbitrator reduced the compensation that he otherwise seems to have been ready to award because the grievor had made scant efforts to mitigate his loss of income following his release from Jail on March 29, 2016.
To be clear, as the arbitrator says, this is a case where there was a “four months [period] during which he had no communication with the employer.” There were rumours that he had been incarcerated. At the time the grievance was filed “The Union acknowledges that, at the time of filing this grievance, it had no contact with Lynch nor any instructions to grieve this matter.”
The employee had a number of disciplines on his record at the time of his termination, including a suspension.
The arbitrator observed that the collective agreement provided for many leaves of absence. The arbitrator went on:
In the present matter, the employer’s position is seemingly two-fold. First, that Lynch did not apply for a leave of absence – presumably, to cover the period of his incarceration – and second, that he abandoned his position of employment. In the factual circumstances, the two are interrelated.
The arbitrator quickly, and following a scant review of the definitions, determined that the employee had not abandoned his position. The employer sent a letter to Lynch’s house which was returned unopened and, presumably, undeliverable. It believes that Lynch should have communicated with it. The arbitrator held that:
The challenge for the employer is Lynch’s uncontradicted testimony that, as a person in remand custody and then as an inmate serving his sentence, he could not communicate with the employer directly. Telephone privileges were limited to contact with a lawyer and the Ombudsman. Even when his caseworker had Steeves on the phone on 15 or 16 February 2015 to talk about Lynch’s employment status, his evidence is that he was not permitted to speak with Steeves directly. It was only then that he learned that the employer had terminated his employment; approximately two months after the event.
Notwithstanding this, the arbitrator went on to say that:
The employer has not shown real prejudice to its operations by Lynch’s absence. It quickly made the decision to replace him with casual employees on an on-going basis as of 18 November 2015. There was no real evidence of any lack of trained casual employees as a result of one or more gaining more regular shifts by replacing Lynch.
The employer suffered some inconvenience but, on the evidence, no real prejudice by his absence without pay. ….
The arbitrator in Horizon Health Network held that:
I conclude that the employer has failed to prove just cause for termination. When it decided to termination Lynch’s employment, he had been absent for over one month, there were rumours as to the cause, and he had not yet been sentenced. The length of his absence was then unknown. In the end, he served about six weeks on remand, six weeks in jail, and six weeks in a halfway house. On remand and in jail (both served in the same facility), his uncontradicted evidence is that he had no access to a telephone to communicate with his employer and had no visitors. When at the halfway house, the employer had already terminated his employment so he contacted the Union.
It would have been relatively easy for the employer to communicate with Lynch once the rumours of his arrest were known. Instead, the employer sent a letter to his home address (though it had previously attempted to make contact by telephone without success). Had the rumour been that Lynch was in hospital, one wonders if the employer’s response would have been the same. [Emphasis added]
Further, and I think significantly, the evidence was that, had the employer received a request from Lynch for a leave of absence, it would have considered it. I am not certain on what “consider it” means or the outcome of such a request. Suffice it to say that no request was received for the reasons described above.
Reinstatement with moderated damages based on the “scant mitigation efforts” undertaken was the outcome of the case.
The arbitrator goes on to make the following broad and sweeping comment, presumably to reinforce his concerns:
No one who is convicted and sentenced to imprisonment for a limited term in New Brunswick should face the Kafka-like situation faced by Lynch in respect of his inability to contact his employer. Here, citizens taken into custody by police and Corrections staff do not seemingly “disappear” as did Lynch.
These cases are, to state the obvious, tough. On the one had, the feeling is that the grievor made “his bed so he needs to lie in it”, in other words, he or she must accept full responsibility for their conduct an behaviour and termination from employment is a consequence of that. On the other hand, the result is not so simple and requires consideration of all of the factors including, it seems, whether the grievor could contact the employer while in jail and whether a leave of absence could have accommodate the situation.
Notwithstanding that, it is a decision the outcome of which would come as a surprise to many employers.