Written on behalf of Peter McSherry
A New Brunswick judge has ruled that a man who missed four months of work after being jailed for impaired driving can keep his job.
A seventh impaired driving conviction leads to jail time
The employee damaged a road sign while driving on November 11, 2015 and fled the scene. The next day he received a phone call from the police asking him to voluntarily appear in court or be the subject of an arrest warrant. The employee chose to appear in court on November 13, where he pled guilty to a charge of having care and control of a vehicle while impaired – his seventh conviction for such an offense. Crown counsel opposed to his release pending sentencing because property was damaged as a result of the employee’s driving. The employee was remanded until sentencing. In December the employee was sentenced to six months in jail.
The employee had no friends or family present at either court appearance, and as a result, his employer, a provincial health network that operates the hospital in Fredericton, was not aware that he had been remanded and subsequently sentenced to jail time. The employee testified at his adjudication hearing that he had no opportunity to contact the employer during his jail time, but thought his lawyer would have done so on his behalf.
The employee ultimately served three months in jail before being transferred to a halfway house for one month.
The employer testified at adjudication that they brought in a casual employee to perform the employee’s duties after about 5 days of not being able to reach him. Shortly thereafter, rumors began to circulate about the circumstances surrounding the employee’s absence.
Termination of employment
The employer attempted to reach the employee through registered mail [when?], advising him his absence was not approved and that he could be terminated as a result of continuing to miss work. The letter was returned to the employer.
A second registered letter was sent on December 21, informing the employee that his employment was being terminated. The employee’s union was copied on this second letter, but not the first. The employer did not learn of the employee’s incarceration until the publication of a newspaper article on December 31, 2015. The employee’s union grieved the termination, which ultimately led to an adjudication hearing.
Prior to being transferred to the halfway house, the employee met with his caseworker, and his manager with the employer. It was during this meeting that the employee learned he had been terminated.
Both parties acted unreasonably, but termination not warranted
The adjudicator found both parties had acted unreasonably. The employee had an opportunity on November 12 (the day before he appeared in court) to tell the employer he may be missing work and to apply for a leave of absence. Meanwhile, the employer should not have acted on rumor when terminating his employment.
The adjudicator ultimately ruled that the employer failed to prove just cause for termination. Despite being aware of rumors of the employee being in jail, they sent letters to his house. It would have been easy enough for them to reach him in jail. The employee, however, was unable to reach the employer while in jail because his outgoing communication is limited to his lawyer and the ombudsman. The adjudicator wondered if the employer would have reacted in the same manner if the employee had been hospitalized rather than jailed.
The adjudicator wrote “ No one who is convicted and sentenced to imprisonment for a limited term in New Brunswick should face the Kafka-like situation faced by (the employee) 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 (the employee)… A person’s employment should be protected, when appropriate, by a right to contact his or her employer when held in custody and deprived of their liberty of action”
The adjudicator ordered the employer to reinstate the employee with compensation for lost wages for the time following his release from the halfway house.
The employer filed application for a judicial review with the Court of Queen’s Bench. In its decision, the court found the adjudicator’s decision to be reasonable and that the employee was deserving of discipline, but not dismissal, stating, “A ‘financial penalty’ and a ‘suspension’ are both disciplinary actions within article 18.01 of the collective agreement. The adjudicator substituted what amounts to a suspension and a substantial financial penalty in place of a discharge.”
Contact the offices of Peter McSherry if your employment has been terminated without reasonable notice or severance. We can help you determine if you have a claim for wrongful dismissal by exploring whether your employer met its legal requirements. Contact us online or by phone at 519-821-5465 to arrange for a full assessment of your case.