Canada: On "Ambushes" And The Rules Of Engagement For Statutorily Protected Leaves Of Absence

A late 2017 arbitration decision out of British Columbia — Kone Inc. v. International Union of Elevator Constructors, Local 82 (Kelpin Grievance), [2017] B.C.C.A.A.A. No. 128 (McEwen) — confirmed that employees cannot "ambush" employers with an after-the-fact claim that going AWOL was actually a legislatively protected leave. In this case, the leave claimed was B.C. "family responsibility leave".

Background facts

KONE hired the grievor, Ralph Kelpin, on February 25, 2016 as an elevator maintenance mechanic in Vancouver. It was Mr. Kelpin's evidence that at the time he was hired, he disclosed to KONE that he was going through a "difficult divorce" and he had child custodial obligations.

On November 8, 2016, Mr. Kelpin e-mailed his direct supervisor, Matt Shields, and "advised" Mr. Shields that he "would be taking vacation time off with his family for the three days between Christmas and New Year's" and, specifically, "December 28, 29 and 30". KONE attempted to accommodate Mr. Kelpin's request. As Mr. Shields' testified, everyone wants to be with their family at that time of year. Unfortunately, Mr. Kelpin had left his vacation request too late, and KONE was unable to grant his request because several other mechanics had already booked that time off. Mr. Shields informed Mr. Kelpin that the vacation request was denied.

Mr. Kelpin did not raise the issue again until December 13, 2016 when, in an e-mail, he purported to "inform" a different KONE supervisor, Patrick Maloney, that he would be taking the days in question as vacation "for time off with family". Mr. Maloney knew that KONE had already refused the same vacation request and denied it again.

On December 21, 2016, Mr. Maloney called Mr. Kelpin to provide him with his work schedule over the three days in question. Mr. Kelpin responded that he would not be at work on those days. Mr. Maloney took the proactive step of contacting the Union, out of fear that Mr. Kelpin would follow through on his threat.

After speaking with the Union, Mr. Kelpin called Ray Dickens, who was KONE's Western District Service Manager at the time, to again demand time off. Mr. Dickens again refused and warned Mr. Kelpin that if he failed to attend work as scheduled, there could be "negative consequences" for his employment.

Mr. Kelpin goes AWOL

As he suggested, Mr. Kelpin did not attend work on any of December 28, 29 and 30, 2016 and instead went to visit with his daughter in the interior of British Columbia pursuant to a pre-existing agreement with his daughter's mother. During that time, Mr. Kelpin was solely responsible for his daughter.

On Mr. Kelpin's return to work, KONE conducted an investigation. During an investigative meeting, Mr. Kelpin told KONE that he needed the time off to "be with his daughter" or said words to that effect. KONE discharged Mr. Kelpin for his unauthorized absence and other insubordination.

The Union grieved Mr. Kelpin's discharge and alleged that, in fact, the employer had no say in whether to grant the requested vacation days because those days were "family responsibility leave" protected under section 52 of the B.C. Employment Standards Act.

Employees cannot lie in the weeds and later claim a protected leave

Arbitrator Joan McEwen dismissed the grievance.

Section 52 of the Employment Standards Act allows employees up to 5 days of unpaid leave to "meet responsibilities related to ... the care, health or education of a child in the employee's care". Without deciding whether the time Mr. Kelpin spent with his daughter amounted to a protected leave, Arbitrator McEwen held that Mr. Kelpin had not provided sufficient information to KONE to allow it to determine whether he might be entitled to a protected leave:

I am satisfied that, based on the limited information the Grievor chose to provide, management could not have deduced the real reason behind his request. As Employer counsel argued, employers should not be ambushed with an entitlement to a protected leave they could not reasonably have known about.

Conclusion

An employee seeking a protected leave must provide his or her employer with sufficient information to allow it to evaluate the nature of the leave before the employer can be expected to determine whether the leave is a protected one. After going AWOL, an employee cannot hide behind a protected leave when he or she failed to provide sufficient notice to his or her employer.

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