Employment & Labour Law

Failure to Promptly Return to Work Following Sick Leave Does Not Warrant Termination

April 7, 2023

Office space representing termination following sick leave

For many, the idea of being off of work, and in turn, losing out on pay, for any length of time due to illness can be a troubling thought. While there are laws in place to address long-term sick leave from work, it is critical that both the employee and employer maintain ongoing and open communication to discuss plans to return to work or other changes to the employment relationship.

In a recent case, the Alberta Court of Justice considered the circumstances of an employee terminated while on sick leave as the employer thought she had abandoned her job. In arriving at its decision, the Court used this case as an opportunity to explain an employer’s obligations to an employee in similar situations.

Employee Receives Positive Performance Review Prior to Sick Leave

In the case of Starling v. Independent Living Resource Centre of Calgary, the employee began working as a program coordinator for the employer, an organization serving individuals with disabilities, youth and seniors, in 2016 when she was 46 years old. In her role, the employee was responsible for developing relevant class programs and hiring instructors to deliver such programs.

The employee performed well in her role and received a favourable performance review in April 2018, noting that she was “exceeding expectations.” However, one month later, her manager was replaced by the Executive Director of the employer. The employee claimed she did not have a good relationship with her new manager and felt targeted by him.

Diabetes Diagnosis Leads to Employee’s Leave From Work

In the summer of 2018, the employee’s health began to decline, and she was eventually diagnosed with Type 2 diabetes and high blood pressure. On August 16, 2018, her doctor initially placed her off work for two weeks, which was extended until September 17.

The employer sent the employee a letter acknowledging that she had been placed on unpaid short-term sick leave effective August 13, 2018. The letter further stated that the employee did not have any accrued sick time available to her. The employer also advised the employee that prior to her return to work, she would be required to provide written notice one week in advance and a certificate from her doctor confirming her return to work.

Breakdown in Communication Between Employer and Employee

The employee felt threatened and concerned by the letter and emailed her employer on August 29, 2018, indicating that she believed she had 16 days of sick leave available to her and that she would contact the Alberta Employment Standards office at the end of August if she did not receive payment of wages.

The employer responded and reaffirmed that the employee did not have any available sick days and would be required to comply with the return to work requirements.

There was no further communication between the parties until September 26, 2018, which was nine days after the original term of sick leave was anticipated to conclude.

Employer Terminated Employee Stating it Was “For Cause”

On September 26, 2018, the employer sent the employee an email stating that they “have no legal obligation to reinstate your employment” and that if an explanation was not provided in relation to the employee’s failure to return to work following the expiration of her sick leave, they would presume that she had “no intention of returning” and they would terminate her employment “for cause.”

The employee did not respond to the letter and subsequently received a Record of Employment from her employer in October 2018, which indicated that her employment had been terminated.

The employer claimed that the termination was issued for cause, telling the Court that the cause arose during her sick leave.

Court Highlights Three Factors to Consider When Assessing Termination for Cause

Citing the case of Haack v. Secure Energy (Drilling Services), the Court highlighted three factors which must be considered when assessing an employer’s claim that it had cause to fire an employee, which include:

“(i) The nature and extent of the employee’s conduct;

(ii) The surrounding circumstances of the employee (e.g., seniority, job description, obligations and responsibilities) and of the employer (e.g., the nature of the business, its policies and practices);

(iii) Whether the employer’s response was proportionate and, in particular, “whether the alleged misconduct is so incompatible with the fundamental terms of the employment relationship that it warrants dismissal.”

The employee relied on Section 53.971(1) of Alberta’s Employment Standards Code, which states that “no employer may terminate the employment of, or lay off, an employee who has started leave under this Division.”

The employer argued that the Employment Standards Code also states that “if an employee has been on leave under this Division, he or she must provide at least one week’s written notice of the date the employee intends to return to work unless the employer and the employee agree otherwise.”

Employee’s Communications Did Not Indicate an Intention to Abandon her Work

Upon review of the three noted factors above, the Court found that the only conduct the employer relied on was the employee’s failure to provide a week’s notice of her intention to return to work following the expiration of her sick leave. This was deemed to be insufficient evidence to conclude that an employee had abandoned her work.

Instead, the Court found the employee’s communication had indicated she would remain on sick leave, stating that “there was no reasonable basis for the (employer) to conclude on September 26 that the (employee) was intentionally refusing to return to work.”

There was no evidence to suggest that the employer took the time to call the employee to check on her or make further inquiries about her medical condition.

Employer Fails to Show that Employee’s Conduct Justified Termination; Court Awards Aggravated Damages

In reviewing the evidence, the Court interpreted the employer’s letter as an indication that it had already decided to terminate the employee, prior to her failure to provide one week written advance notice. Therefore, the employer had not demonstrated that the employee’s conduct in failing to return from work was sufficient cause for termination.

When considering the second factor, the Court found that the employer assumed that the employee would be fit to return to work upon the expiry of her sick leave term and further, assumed that she chose not to return, without making additional inquiries. Ultimately, the Court held that the employer’s decision to terminate the employee was not proportional to the alleged misconduct.

Ultimately, the Court found in favour of the employee and awarded various damages, including $5,460 in salary in lieu of reasonable notice, $2,620 for unpaid sick days, $225 in expenses, and aggravated damages of $2,000.

Contact the Employment Lawyers at DBB Law in Calgary for Trusted Advice and Solutions on Wrongful Termination

The skilled lawyers at Dunphy Best Blocksom LLP are leaders in Calgary’s employment & labour law sector. Our trusted employment lawyers ensure that both employees and employers understand their rights and obligations arising from the employment relationship. We regularly advise employees and employers on how to protect and enforce their rights in the event of a dispute resulting from employee terminations and claims against the employer for wrongful terminations.

DBB Law provides a broad range of legal services in various practice areas, including family law, residential and commercial real estate, and wills, trusts and estates. Contact us online or call us at 403-265-7777 to schedule a confidential consultation with one of our lawyers.

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