Force majeure leave – was your presence essential?


As a general rule, an employee needs at least one year of service with his employer to file a complaint for unfair dismissal with the Commission des relations du travail (“CMRHowever, there are exceptions to this general rule.

An exception is if, for example, the WRC finds that an employee has in fact been penalized and terminated because the employee has exercised their right to protective leave. In these circumstances, a WRC arbitrator in unfair dismissal proceedings will not seek the employee to have one year of service with the employer.

Recent WRC case

In a recent WRC decision (ADJ-00027631), the complainant filed a complaint for unfair dismissal, alleging that she had been dismissed as an act of penalization because she had availed herself of force majeure let. She did not have a year of seniority but argued that this was not necessary as her dismissal was linked to the fact that she had requested force majeure leaving, which is a protective let. The WRC accepted and considered the substantive claim.

Facts

The employee began working for the respondent employer in January 2019 and was terminated in November 2019. During this period, the employer had recorded seven instances where she allegedly arrived late for work and / or failed to follow the instructions. company declaration procedures.

One Sunday, the employee’s child who had type 1 diabetes was brought to the hospital. The employee texted her duty manager, explaining the situation and indicating that she would not be at work the following Monday or Tuesday. She returned to work on Thursday, after which she was dismissed for repeated failure to comply with internal company procedures.

Force majeure leave

Force majeure leave is defined as paid leave where the immediate presence of an employee is essential due to injury or illness of a family member. Employees are entitled to take three days of force majeure leave in a period of 12 consecutive months or five days in a period of 36 consecutive months.

“Essential”

In deciding the case, the WRC took note of the Supreme Court ruling in Minister of Justice and Equality c. Skibal[i], who described force majeure as:

“… Abnormal and unforeseeable circumstances… beyond the control of the party… the consequences of which could not have been avoided despite the exercise of all due diligence. “

The WRC admitted that the employee’s situation related to her sick child made her presence essential to a sick day of the child. However, the arbitration officer disputed that the employee claimed the three days as force majeure leave and determined that

“On the second day of hospitalization, the imperative of indispensable is less clear. The presence of a parent is surely important for a sick child, but the abnormal and unforeseen element of the situation has probably diminished by then …”

Conclusion of the CMR

In conclusion, the WRC referee ruled that the three days off taken together by the employee did not “do not fall under the requirements of an essential presence” and the leave taken could not be considered as force majeure leave.

For this reason, the referee said he could not “Offer a remedy under the unfair dismissal law” because the employee did not fall under the exception of penalization of the protection leave explained above.

Essentially, this meant that the employee did not have the usual one-year service as required by the Unfair Dismissal Act and that she did not have any exceptions allowing her to avoid the requirement of a year of service under the Act. His request failed.

Remark

As noted above, where certain exceptions apply, an employee will not need one year of service to file a wrongful termination complaint.

However, in reviewing the substantive case, the WRC evaluated each of the three days taken by the employee – in isolation. In the end, the WRC found that only one of the days “may be“Met the criteria for leave for force majeure, but this was insufficient to include the three days of absence in its entirety in the definition of leave for force majeure.

The case serves as an important reminder to employers to ensure that the leadership of their organizations is clear on what exactly amounts to, and not, force majeure.

Interestingly, in another recent case of the WRC (ADJ-00027537), the employee claimed he had a “flat tire” and requested force majeure leave for that day in circumstances where he was 20 minutes late. In that case, the WRC concluded that a flat tire did not fall under the definition of force majeure and denied the claim.


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