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Locked Up: They Won’t Let Me Out (For My Shift)

Discipline and Dismissals | Employment Contracts

What happens if someone is in jail and can’t make it to work? Can they be fired? Or is their contract of employment frustrated? Or does the employer have to keep their job open for them?

In a recent decision, the Ontario Labour Relations Board (the “Board“) determined that an employee was not entitled to notice/Termination Pay pursuant to the Employment Standards Act, 2000 (the “Act“) due to the fact that his employment had been frustrated as a result of his incarceration.

Background

In Adam West v J. Dowswell Farms Ltd. the employee was employed first as a seasonal worker and ultimately as a year-round Farm Manager. In May of 2019, he was arrested and charged with a criminal offence. He advised his employer about the arrest but did not lose any time from work as a result. On March 28, 2022, he was convicted and sentenced to 18 months in custody but was released on bail the following day pending his appeal of his conviction and sentence. The employee’s appeal was heard on December 19, 2022, and was unsuccessful. As a result, he was required to surrender to police and begin serving his sentence on January 27, 2023.

The employee advised the employer on January 26, 2023, that he would not be present at work the following day and “for an indeterminate period thereafter”. The employee’s sister engaged in further correspondence with the employer on the employee’s behalf and advised them that the employee’s sentence was for 18 months, but that he could be out in 6 months on parole.

The employer terminated the employee’s employment on January 28, 2023, for abandonment of employment. On March 4, 2023, the employee’s sister advised the employer that the employee would have a further bail hearing on March 10, 2023, and could be released pending a further appeal. The employer replied to confirm that the employee’s employment had ended, and the employer had hired a new employee to replace him. Ultimately, the employee was released on further bail on March 13, 2023.

The employee filed a claim with the Ministry of Labour alleging that the employer had failed to provide him with notice/Termination Pay in accordance with the Act. The Employment Standards Officer declined to issue an Order to Pay. The employee then pursued an application for review of that decision to the Board.

Arguments

The employee’s sole argument was that the employer was always fully aware of his circumstances, having been kept informed by his sister, and as a result had no reason to terminate his employment without notice or Termination Pay.

The employer took the position that it had terminated the employee’s employment for wilful misconduct in relation to the acts underlying the employee’s criminal conviction, which resulted in his incarceration and inability to attend work. In the alternative, the employer argued that the employee’s incarceration had rendered his continued employment impossible or frustrated the employment relationship.

Findings of the Board

In regards to the employer’s first argument, the Board noted that in a previous decision, it had specifically held that “unless the misconduct underlying the criminal conviction was directly related to the employment, the conviction and incarceration do not establish wilful misconduct under the Act.” However, the Board found that it did not need to deal with the issue of whether the employee had engaged in wilful misconduct, because the employer’s second argument that the employment relationship had been frustrated was sound.

The Board noted that “[t]he basic bargain of any employment contract is that an employee provides their labour to the employer and the employer provides compensation to the employee for their labour. Different employment relationships will have different essential requirements around how, when and where the labour by the employee is to be provided“.

In this case, the employee’s employment required his physical attendance daily at the employer’s farm. Further, the critical period in the employer’s operation occurred during the planting season, which started in April. Up until March, the employer had no reason to expect that the employee would be able to fulfil his employment obligations until July at the earliest.

In short, the Board concluded that at the time his employment was terminated, it was impossible for the employee to perform his employment duties, as he was incarcerated. Further, there was no reasonable expectation that he would be able to fulfil his employment duties for the foreseeable future, and certainly not before the start of the critical planting season. As the employment relationship had been frustrated, he was not entitled to notice/Termination Pay pursuant to the Act.

Finally, the Board noted that when an employee is unable to attend work, it is their responsibility to seek the employer’s permission to be absent, which the employee in this case had not done.

Key Takeaways

This case highlights that frustration of contract will always require a fact specific analysis. As the Board noted, every employment relationship will have different essential requirements. In this case, the fact that the employer was approaching a critical time in their business, which the employer understood the employee would not be available for, was an important factor in assessing whether the employee would be able to return to work in “the foreseeable future”.

Employers should always seek legal advice before taking the position that a contract of employment has been frustrated. In that regard, employers need to be aware that when the employment relationship is frustrated in particular circumstances, specifically due to the illness or injury of an employee, the employer will still be obligated to provide the employee with their minimum entitlements pursuant to the Act.

Employees who are advised that their employment relationship has been frustrated should speak with an employment lawyer as soon as possible, and certainly before signing any documentation related to the cessation of the employment relationship, to ensure their rights are protected.

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