An arbitrator has upheld the dismissal of a personal support worker (PSW) at the Baycrest Centre for Geriatric Care in Toronto after she didn’t return to work following an approved leave without satisfactory explanation or notification to the employer.
The PSW had been employed at Baycrest since April 8, 2013. The issue arose in 2021 when her mother-in-law in India was diagnosed with Stage 4 pancreatic cancer. In response, the PSW requested emergency leave to travel to India, initially planning to return by the end of March 2022.
However, due to various circumstances, including the COVID-19 pandemic and visa issues for her sister-in-law, her stay in India extended beyond the planned date.
Baycrest had granted her leave until Feb. 27, 2022, expecting her return on Feb. 28, 2022. When the PSW did not return, Baycrest sent several letters to her home in Toronto, which she did not receive as she was still in India. The PSW did not notify Baycrest of her extended absence.
Consequently, Baycrest deemed her employment terminated under the collective agreement for absence without notification.
During the hearing, conducted via video conference on Oct. 24, 2023, the arbitrator heard evidence from the PSW, who acknowledged her mistake in not informing Baycrest of her extended stay in India.
Despite this admission and her nearly 10 years of discipline-free service, the arbitrator found that Baycrest’s application of the deemed termination provisions was not arbitrary.
It did say that, had the PSW reached out to Baycrest about the situation and the need to extend the leave, the result may have been different, both from the employer’s and the arbitrator’s point of view.
Given the circumstances of her mother-in-law’s health, the absence of support in the community due to COVID and her sister-in-law’s difficulties in obtaining a visa to travel to India from California, “I would have found (she) had a satisfactory reason for her absence from work during the relevant period,” the arbitrator said.
The arbitrator was critical of Baycrest for not reaching out to the PSW by email, rather than regular mail, calling it “inexplicable” that it failed to send the warning letters electronically since it knew she had gone to India and HR had previously communicated to her using her personal email address.
But Baycrest was under no obligation to send these warnings letter at all, the arbitrator said.
“In these circumstances, however sympathetic I may feel towards the Grievor, I simply cannot find that Baycrest’s actions in applying the deemed termination provisions in the collective agreement were arbitrary,” it said.
The termination was upheld and the grievance was dismissed.
For more information, see Service Employees International Union, Local 1 Canada v Baycrest Centre for Geriatric Care, 2023 CanLII 107598 (ON LA)
