Anmore loses appeal over decision to fire planner who took leave to look after children during pandemic

The Village of Anmore was wrong to fire an employee who was on leave during the COVID-19 pandemic, following a recently released decision from the Employment Standards Tribunal.

Jason Smith was working for Anmore as manager of development services when he took a leave to look after his children in the summer of 2020.

Approximately one month after asking to take that leave, Smith was terminated.

The tribunal awarded Smith money for lost wages and vacation pay. Anmore also faced two fines totalling $1,000.

However, the Village of Anmore recently appealed that decision, arguing Smith wasn’t on leave, and that he wasn’t fired because he was on leave.

Anmore told the tribunal Smith was fired “due to changing circumstances,” explaining that a large development wasn’t going forward and there wasn’t enough work to justify keeping him in that role.

When Smith was on leave, “other employees were able to manage his department and, accordingly, it determined the employee’s full-time role was not needed,” the village contended.

Brandon Mewhort, a director with the Employment Standards Tribunal, didn’t agree.

Smith’s work wasn’t for a fixed term or tethered to a specific development, Mewhort wrote.

There was also “nothing on the record” suggesting Anmore and Smith had talked about a lack of work.

On July 6 – two weeks before Smith was fired – council directed staff to proceed with a development project. Smith also contended Anmore spent: “a significant amount of money on planning consultants after his termination.”

Mewhort also noted a July 8 email from the Village of Anmore which expressed concern about work piling up while Smith was gone.

The email stated: “Also, if you are able to be back at work in August and September, there will be work that has accumulated due to your leave which would be worsened by vacation time being taken when you are no longer taking unpaid leave.”

While he was out of the office, Smith did some work on a limited basis related to a rezoning.

Anmore argued that Smith couldn’t have taken COVID-19-related leave because the Employment Standards Act doesn’t allow employees to work occasionally while on leave.

That interpretation is inconsistent with the intent of the Employment Standards Act, according to Mewhort.

While the act doesn’t explicitly address the issue, it should be: “interpreted broadly to extend its protections to as many employees as possible,” he wrote. “COVID-19-related leave is for employees who require leave to, among other things, care for their children.”

Anmore’s appeal was dismissed.