Can being imprisoned justify absence from work?
In 2011 Neil got a job as a seasonal worker at a farm in Ontario. Each year he was laid off for the winter and rehired in the spring. Nine years later he became farm manager and was employed on a year-round basis.
Things were going well but Neil was arrested and charged with a criminal offence. He told his boss about the charge but said he didn’t have to take time off work. Three years later the charge caught up with him and Neil was convicted. He immediately appealed so he did not have to report to the jail but nine months later the appeal was lost. Neil told his boss he had to report to the jail the next day and didn’t know how long he would be away.
Soon after Neil’s sister contacted the employer and told him that Neil had been sentenced to 18 months in jail but he might be out on parole in six months. She also indicated that he was pursuing yet another appeal.
The planting season was coming in April and the employer needed Neil at work. The employer ended the relationship and took the position that it was job abandonment. Another way of saying that is the employer took the position that the contract was frustrated, a kind of no-fault termination. Neil was eventually released and filed a complaint with the Ministry of Labour for eight weeks’ termination pay that he said was owing pursuant to the Employment Standards Act of Ontario (ESA). The problem was the ESA said that termination wasn’t owing for an employee “whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.” Neil lost his case. It was held that the basic bargain of the employment contract is that you get paid to show up for work. You show up regularly and the employer is obliged to write the cheque. Neil couldn’t keep his part of the bargain. Nobody was saying that he was intentionally away from work. The employer had no obligation to grant Neil some sort of leave of absence to cover his incarceration.
The Ontario Human Rights Code does not offer protection for criminal convictions or the consequences of those convictions.
Even if Neil had only been sentenced to 30 days, the employer could have taken the position that the contract was frustrated. Perhaps if he had only been in the slammer for a week or two the case would have gone in a different direction.
This case is not about intent. It is clear that Neil did not want to be away from work but had no control over the issue other than the fact that he could have chosen not to do whatever crime for which he was convicted.
I have seen similar, but not the same, situations. The Employment Standards Act allows an employee to take a leave of up to 17 weeks to care for an adult family member or 37 weeks for a minor child. In order to get that leave, however, a qualified medical practitioner must issue a certificate indicating that the family member has a serious medical condition with a significant risk of death occurring within the next six months.
Contrast this to situations in which somebody says they have to stay in a foreign land for an extra two months past the end of their scheduled vacation to take care of a sick family member. No medical documentation is provided or leave requested. An employer in that situation should alert the employee to the possibility of leave and the requirements to be granted that leave. If there is no appropriate response the employer can take the position that the employee abandoned their employment or, alternatively, that the contract was frustrated. It is six of one and half a dozen of the other. Showing up to work is a basic term of all employment contracts. Failing to do so without a good excuse will usually lead to the end of the relationship.
This article was originally published by The Hamilton Spectator.
