Hospital worker fired for being AWOL while in jail on 7th DUI wins job back
Labour adjudicator says no prisoner should face 'Kafka-like' situation of not being allowed to call employer
An employee who was fired after not showing up for work at the Dr. Everett Chalmers Hospital in Fredericton for four months without explanation — he was in jail for his seventh impaired-driving offence — has been ordered reinstated in a labour adjudicator's ruling following a grievance by his union.
In a case described by the adjudicator as something that "sounds like an episode of The Twilight Zone," environmental services worker Paul Lynch argued he was unable to contact his employer because while he was incarcerated he had no telephone privileges other than to contact his lawyer or the Ombudsman.
A person's employment should be protected, when appropriate, by a right to contact his or her employer when held in custody.- John McEvoy, adjudicator
In his ruling, adjudicator John McEvoy called for prisoners to be given the right to contact their employer when in custody.
"No one who is convicted and sentenced to imprisonment for a limited term in New Brunswick should face the Kafka-like situation faced by Lynch in respect to his inability to contact his employer," McEvoy says in the ruling. "Here, citizens taken into custody by police and Corrections staff do not seemingly 'disappear' as did Lynch.
"A person's employment should be protected, when appropriate, by a right to contact his or her employer when held in custody and deprived of their liberty of action."
Impaired driving incident
Lynch's story dates back to Remembrance Day in 2015. When driving to work for his 4 p.m. shift to sanitize the lab and ensure medical samples and tests are not contaminated during cleaning of the lab, Lynch damaged a sign on the off-ramp from Highway 8 to Prospect Street. The ruling says alcohol was a factor in the incident, and Lynch left the scene.
On Nov. 12, Lynch received a call on his cellphone from a Fredericton police officer who told him he could either voluntarily appear in provincial court on Nov. 13 at 1 p.m. or be the subject of an arrest warrant.
While at work on Nov. 12, Lynch testified, he told colleague Douglas White about his scheduled court appearance the following day and jokingly said, "if I didn't show up for work, it will be because I'm in jail."
On Nov. 13, Lynch pleaded guilty to having care and control of a motor vehicle while impaired. The most recent of his six previous impaired-related convictions was in 1998, for which he was fined and had his licence suspended.
Lynch said he was not accompanied by his wife or anyone else at the Nov. 13 court appearance.
The Crown opposed Lynch's release and he was taken into custody for a sentencing hearing on Dec. 29. Lynch was subsequently sentenced to six months in jail. He ended up serving six weeks in jail on remand, a further six weeks in jail, and six weeks in a halfway house.
"On remand and in jail (both served in the same facility), his uncontradicted evidence is that he had no access to a telephone to communicate with his employer and had no visitors," McEvoy says in the ruling. "When at the halfway house, the employer had already terminated his employment so he contacted the Union."
Lynch, who had worked at the hospital for 12 years, is a member of CUPE Local 1252, which filed a grievance over his firing.
Attempts to contact Lynch
On Nov. 23, Thomas Steeves, the regional manager of environment services for Horizon Health Network's Region 3, sent a registered letter to Lynch about his missed shifts from Nov. 13 to Nov. 20 and the lack of communication.
"You are therefore considered to be on an unapproved leave of absence from your position," Steeves wrote in his letter. "If we do not hear from you by [4 p.m. on Nov. 25], disciplinary action, up to and including dismissal may be invoked."
You are therefore considered to be on an unapproved leave of absence from your position.- Thomas Steeves, regional manager for environmental services
The letter was not picked up, so it was returned to the employer as "not delivered."
A second registered letter was sent to Lynch on Dec. 21 informing him that his employment was being terminated because he had "abandoned" his position.
The Dec. 21 letter was copied to Lynch's union local.
The letter to Lynch was also returned as "not delivered."
On Dec. 31, Horizon officials learned from an article published in the Fredericton Gleaner that Lynch had been convicted and sentenced to six months in jail, giving Horizon "the first real indication of what had occurred."
Position of parties
Horizon argued for the grievance to be dismissed, saying Lynch's explanation for his failure to inform them of the situation and request a leave of absence is not reasonable.
Horizon also said that for Lynch to tell his colleague White that if he didn't show up for work it would be because he was in jail, and then to leave it to White to inform the employer, is not an acceptable or reasonable response.
The union argued Lynch had every intention of informing Horizon about the situation, "but the initial hearing did not unfold as he had expected."
"Instead of an adjournment to a later date, he was immediately remanded into custody and had no real opportunity to communicate directly with the employer. He relied on White to inform the employer on his behalf."
Fails to prove just cause for firing
McEvoy concluded Horizon failed to prove it had just cause for terminating Lynch's employment.
"When it decided to [terminate] Lynch's employment, he had been absent for over one month, there were rumours as to the cause, and he had not yet been sentenced," states the ruling. "The length of his absence was then unknown.
Had the rumour been that Lynch was in hospital, one wonders if the employer's response would would been the same.- John McEvoy, adjudicator
"It would have been relatively easy for the employer to communicate with Lynch once the rumours of his arrest were known. Instead, the employer sent a letter to his home address (though it had previously attempted to make contact by telephone without success).
"Had the rumour been that Lynch was in hospital, one wonders if the employer's response would have been the same."
In his Dec. 20 ruling that has not been widely reported, McEvoy orders Horizon to reinstate Lynch and provide an appropriate orientation period to become familiar with his duties and new developments or change. Lynch also receives lost wages and benefits retroactive to Sept. 13, 2016.
It is not known if Lynch has been reinstated. Horizon Health Network declined to provide any information about the case, saying it does not comment on personnel matters.
- An earlier version of this story referred to Paul Lynch as a lab worker and said his job duties included sanitizing the lab and medical equipment. In fact, Lynch is an environmental services worker who sanitizes the lab and ensures various medical samples and tests are not contaminated.Feb 17, 2017 12:50 PM AT