PRESUMPTION OF RESIGNATION ON RETURN FROM MATERNITY LEAVE: EMPLOYER IMPLIED THAT IT WAIVED ITS RIGHT TO WRITTEN NOTICE

An employee disputed her termination of employment resulting from her failure to report to work following the expiry of unpaid leave. The evidence indicated that the employee had benefited from a precautionary cessation of work and maternity leave that began in December 2004. She did not provide any written notice to obtain such leave. At the beginning of January 2005, she contacted her supervisor to inform him of her intention to take an unpaid leave until December 2005. In November 2005, the employer informed the employee that it had presumed her resignation, as she had not provided written notice of her intent to extend her unpaid leave which expired, according to the terms of her agreement, in May 2005. According to the arbitrator, the employer had waived its right to written notice and given tacit approval of the employee’s request for unpaid leave. The employee was thus entitled to reinstatement. Syndicat des travailleuses et des travailleurs du transport adapté du Montréal métropolitain – Médicar 2000 and Médicar 2000 inc. (Chantale Faucher) , DTE 2006T-920 (T.A.) Mtre. Jean M. Gagné