A man we will call Greg started working at an automotive manufacturing plant in Oakville in 1994.  In the fall of 2000 he learned that his father in India had passed away.  He went into work and filled out a form called a "Personal Leave of Absence Request".  He indicated on the form that he would be  beginning the leave that day and returning in "4-5 weeks".  Greg indicated the reason for the leave and left the form on his supervisors desk before going home and catching an airplane for India.  He had spoken to his supervisor about the death of his father and so the request for a leave of absence was not a surprise.        
The leave form filled out and signed by Greg, said that "Any employee who does not use the absence for the purpose intended or does not return to work after the approved time, will be considered as a voluntary resignation effective the last day actually worked."
When the employer tried to contact Greg at his home in Canada a few days later, the number it had for Greg was out of service.  Greg did not communicate with his employer at all during his leave of absence and in fact did not return after five weeks.  Six weeks after his leave began, Greg showed up at work, punched in, went to his work station and began doing his job without announcing his arrival to anyone.  When his presence was discovered he was told that he was terminated as a result of having abandoned his position by not returning from his leave when expected.
During the history of Greg's employment, he had filled out leave applications twice before this last leave of absence.  The form was the same in all circumstances, warning the employee that if they did not return at the end of the approved leave they would be considered to have resigned their employment. 
Greg filed a complaint with the Employment Standards branch of the Ministry of Labour claiming termination and severance pay.  The Employment Standards officer dismissed his complaint as a result of Greg having failed to return from his leave and having made no effort to contact his employer.
Greg appealed the Employment Standards Act officer's decision and the matter went before an adjudicator at the Ministry of Labour in Toronto.  A full hearing was held.  Greg indicated in his evidence that when he booked the flight to leave Canada for India he could not get a return date until six weeks after the leave began.  His hope was that while in India he could rearrange for an earlier return flight so that he would be back within the time period he had indicated to the employer. 

He did not, however, contact his employer before he left for India to tell it that he may have a problem returning on time.  Given that he had just received news of his father's death, however, that in itself would have been excusable.  Greg, however,  did not contact his employer at all while he was in India.  He claimed that the communications system in the city in India where his parents lived was unreliable and that he had tried once to call the employer but he could not get through.  He had no real explanation as to  why he did not try again later.   Greg admitted under cross examination that on past occasions when he had been in India visiting his parents, if he couldn't get a call through to Canada he would usually try a few hours later and succeed.  There was a 24-hour message machine at the employer's office where he could have left a message indicating that he would be delayed in his return.  Greg admitted under cross examination that he knew he was required to be back within five weeks and that not returning in time could endanger his employment.
When Greg eventually returned to work and was taken into the human resources office to be terminated he made no mention of any problems with the flight scheduling.  He gave no explanation at all. 
The employer gave evidence that it was not concerned that Greg did not have his leave of absence pre-approved and signed by his supervisor before he left.  That was understandable in the circumstance.  The employer said that if Greg had simply called them and indicated he was having trouble scheduling a return flight, he would not have been terminated.  It said  that if Greg had even bothered in the termination interview to give some plausible explanation for why he hadn't returned in time or contacted the employer, it might not have terminated his employment.  Faced with Greg's utter disregard for his obligations towards his employer, however, the employer felt it had no option but to terminate Greg's employment.
When an employee is terminated, they are entitled to the minimum termination payments required by the Employment Standards Act unless the employer can prove that the employee was guilty of willful misconduct.  The employer must show that the employee purposefully engaged in conduct that he knew to be serious misconduct.  Simple carelessness or neglect may not necessarily be found to be willful misconduct. 
In this case, the adjudicator found that the employer had made its policy clear and that Greg knew that he was violating the employer's policies.
The adjudicator found the employer was entitled to rely on its properly communicated policy.  Greg had been guilty of willful neglect of his duty and was not entitled to any payments. 
The lesson for employers who think that the cards are always stacked against them is that the courts and the Ministry of Labour will enforce clearly communicated policies.  In this case, the employer had taken the time a decade ago to create a leave of absence form which clearly communicated the consequences of not returning from the leave when required.  The employer consistently required this form to be filled out and signed by  employees whenever a leave was taken.  It followed a simple and not very paper-intensive process and it saved itself a lot of money.
As published in the Hamilton Spectator, January 6, 2003
Ed Canning
Ed Canning
P: 905.572.5809