Employee took three days off work to visit ill grandmother but didn't tell his employer where he was
This edition of You Make the Call looks at the case of an employee who took time off with no notice because a family member was gravely ill.
Steve Kelesis worked as a shackler for Ryding-Regency Meat Packers Ltd., a meat processor and wholesaler in Toronto, since November 2001. On Oct. 25, 2004, he learned his grandmother was in the hospital and was dying. The next day he went to the hospital and stayed there all day rather than going to work. He spent all of the following day at the hospital as well, only leaving to pick up his wife. He didn’t contact Ryding-Regency on either day to explain his absence though the company had a dedicated phone line for reporting absences.
On Oct. 28, after spending the morning at the hospital, Kelesis went to the plant to explain why he hadn’t been at work for the past two-and-a-half days. When asked why he didn’t call in to report his absence, he said he had been “in a state of shock, worried, upset.” He also claimed he had told a foreman the previous week he would be taking a couple of days off, though he didn’t specify which days.
Kelesis then spoke with the assistant plant manager and told him his sick grandmother was the reason for his absence. However, the assistant manager testified Kelesis didn’t explain his absence or why he didn’t call in. The assistant manager told him “your service is done here.”
Kelesis returned on Oct. 29 and he was given papers confirming the termination, though an official termination letter wasn’t included. On Nov. 11, 2004, the union submitted a doctor’s note explaining Kelesis had been unable to work Oct. 27 to Oct. 30, 2004, due to anxiety over his grandmother’s illness. However, Kelesis didn’t see the doctor or receive any treatment during this time.
Ryding-Regency claimed it was entitled to fire Kelesis under the collective agreement which stipulated an absence for two or more days without the company’s authorization was grounds for termination. Kelesis claimed since the absence was because of his grandmother’s illness, he was protected under the Employment Standards Act (ESA), which entitles an employee to emergency leave without authorization for illness of a grandparent. The act also allows for an employee to notify the employer after the leave begins if it must begin immediately.
You Make the Call
Should Kelesis have been fired for violating the collective agreement by not notifying his employer of his absence?
OR
Was the absence allowed by employment standards legislation?
If you said the absence was permitted and Kelesis shouldn’t have been fired, you’re correct.
The arbitrator found the ESA establishes an employee’s entitlement to emergency leave in the case of an illness by a family member such as a grandmother and while there is a notice requirement mentioned, it isn’t linked to this entitlement.
“By separating the entitlement to the leave from the notice requirement, it seems the legislature did not intend to make the failure to provide notice grounds to disqualify the employee from taking the leave,” the arbitrator said. Because Kelesis’ absence was an emergency leave under the ESA, the collective agreement was not in effect. Therefore, the arbitrator found Kelesis could be disciplined for failing to provide notice but not fired.
However, the arbitrator noted Kelesis could have notified his employer of his absence earlier than the third day. Because his testimony was inconsistent at times, the arbitrator was inclined to believe he hadn’t been as forthcoming with his employer either.
“At no time during his testimony did (Kelesis) acknowledge any wrongdoing or express any regret for his conduct and was not forthright in his testimony,” the arbitrator said. Because of this, Kelesis was reinstated without loss of seniority but was not given compensation for the time he was unemployed.
For more information see:
•Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A, 2006 CarswellOnt 8872 (Ont. Arb. Bd.).
Steve Kelesis worked as a shackler for Ryding-Regency Meat Packers Ltd., a meat processor and wholesaler in Toronto, since November 2001. On Oct. 25, 2004, he learned his grandmother was in the hospital and was dying. The next day he went to the hospital and stayed there all day rather than going to work. He spent all of the following day at the hospital as well, only leaving to pick up his wife. He didn’t contact Ryding-Regency on either day to explain his absence though the company had a dedicated phone line for reporting absences.
On Oct. 28, after spending the morning at the hospital, Kelesis went to the plant to explain why he hadn’t been at work for the past two-and-a-half days. When asked why he didn’t call in to report his absence, he said he had been “in a state of shock, worried, upset.” He also claimed he had told a foreman the previous week he would be taking a couple of days off, though he didn’t specify which days.
Kelesis then spoke with the assistant plant manager and told him his sick grandmother was the reason for his absence. However, the assistant manager testified Kelesis didn’t explain his absence or why he didn’t call in. The assistant manager told him “your service is done here.”
Kelesis returned on Oct. 29 and he was given papers confirming the termination, though an official termination letter wasn’t included. On Nov. 11, 2004, the union submitted a doctor’s note explaining Kelesis had been unable to work Oct. 27 to Oct. 30, 2004, due to anxiety over his grandmother’s illness. However, Kelesis didn’t see the doctor or receive any treatment during this time.
Ryding-Regency claimed it was entitled to fire Kelesis under the collective agreement which stipulated an absence for two or more days without the company’s authorization was grounds for termination. Kelesis claimed since the absence was because of his grandmother’s illness, he was protected under the Employment Standards Act (ESA), which entitles an employee to emergency leave without authorization for illness of a grandparent. The act also allows for an employee to notify the employer after the leave begins if it must begin immediately.
You Make the Call
Should Kelesis have been fired for violating the collective agreement by not notifying his employer of his absence?
OR
Was the absence allowed by employment standards legislation?
If you said the absence was permitted and Kelesis shouldn’t have been fired, you’re correct.
The arbitrator found the ESA establishes an employee’s entitlement to emergency leave in the case of an illness by a family member such as a grandmother and while there is a notice requirement mentioned, it isn’t linked to this entitlement.
“By separating the entitlement to the leave from the notice requirement, it seems the legislature did not intend to make the failure to provide notice grounds to disqualify the employee from taking the leave,” the arbitrator said. Because Kelesis’ absence was an emergency leave under the ESA, the collective agreement was not in effect. Therefore, the arbitrator found Kelesis could be disciplined for failing to provide notice but not fired.
However, the arbitrator noted Kelesis could have notified his employer of his absence earlier than the third day. Because his testimony was inconsistent at times, the arbitrator was inclined to believe he hadn’t been as forthcoming with his employer either.
“At no time during his testimony did (Kelesis) acknowledge any wrongdoing or express any regret for his conduct and was not forthright in his testimony,” the arbitrator said. Because of this, Kelesis was reinstated without loss of seniority but was not given compensation for the time he was unemployed.
For more information see:
•Ryding-Regency Meat Packers Ltd. v. U.F.C.W., Local 1000A, 2006 CarswellOnt 8872 (Ont. Arb. Bd.).
