Canadian Labour Reporter

September 24, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2018 September 24, 2018 ARBITRATION AWARDS Jack had been experiencing at- tendance troubles for years: on Dec. 20, 2012, he was terminated after an absence. But on Jan. 10, 2013, he was reinstated (after signing a last-chance agreement) when the company found out about the stress that had caused the earlier absenteeism. In 2015, two letters were en- tered into Jack's personnel file after he exceeded the limit of six absences in 12 months. However, the letters were not considered disciplinary. On June 21, 2016, Jack was warned by Maritime Paper that a medical certificate was required for all days off, and any further violations could be grounds for termination. In a letter, Jack was told he "must attend a physician's office on the day of your illness, the note must be dated for that day, and it must clearly indicate that you were seen on that day and that you were unable to attend work due to medical reasons." On July 10, 2017, Jack was told that because his attendance had not improved, more detailed doc- tor's notes would have to be sub- mitted for any further illnesses. After he refused to bring in a note, Jack was suspended for two days. He was warned that any fu- ture absences might result in ter- mination. But on Jan. 10, 2018, Jack was terminated. "You have been re- peatedly warned and reminded of the requirement to bring in a note for your medical absences. Despite these warnings and a sus- pension, you failed once again to comply with this requirement," said the letter of dismissal. The union, Unifor, Local 1520, grieved the firing and argued it was too harsh a response. Jack testified the reason he didn't obtain the certificate on Jan. 5 was because a snowstorm para- lyzed the roads and the public was warned to minimize travel, so he didn't go to the doctor. The note was dated Jan. 4, in- stead of Jan. 5, due to an error on Jack's part as he worked the mid- night-to-8 a.m. shift and was con- fused about the exact date of the sickness. Maritime Paper argued that Jack's letter did not provide the re- quired information, which meant it was insubordination on his part. Arbitrator Augustus Richard- son upheld the grievance and or- dered the company to back-pay Jack from May 26 and substitute the termination for a two-week suspension. "The employer never seriously contested (Jack's) evidence that he was indeed sick on Jan. 5, 2018, and that was the reason for his absence from work that day," said Richardson. However, Jack didn't fully fol- low the employer's orders with the note and for that he should have been disciplined. "I am accordingly satisfied that (Jack's) failure to make any attempt to comply with the em- ployer's instruction of June 2017 regarding the requirements for a medical certificate was insub- ordinate. The instruction was clear. (Jack) understood it. It was given by a person in authority who was entitled to give it. And (Jack) failed to make any effort to com- ply with it prior to his return to work on Jan. 8," said Richardson. Reference: Maritime Paper Products and Unifor, Local 1520. Augustus Richardson — arbitrator. Roch Leblanc for the employee. Sept. 7, 2018. 2018 CarswellNS 636 Toronto Police on July 29 and he was charged with assault and ag- gravated assault. On July 31, Hatch's father called Brad Whittock, supervisor, and told him about the absence. When he was asked if Hatch was sick, his father said he didn't know. The next day, his father again called Whittock and told him the same thing. But on Aug. 3, Hatch's lawyer contacted Whittock and another supervisor and explained what had happened to Hatch. The lawyer said he was at- tempting to arrange bail and he was hopeful Hatch could return to work the following week. But on Aug. 8, Hatch hadn't re- turned to work. Whittock then called Hatch's father and said, "It was extremely important that the grievor call the City as soon as he was able." Hatch had limited access to a pay phone while incarcerated. Between Aug. 9 and Aug. 25, there was no further contact be- tween the City and Hatch or his representatives. He was fired on Aug. 25. Hatch was eventually released on Dec. 5 and he was ordered to obey a peace bond for 12 months as a result of the charges. The union, Toronto Civic Employees' Union, Local 416 of the Canadian Union of Public Employees (CUPE) grieved and argued the employer knew Hatch was in jail and had limited access to a phone. But the employer countered and said that because Hatch didn't provide written notice and he was absent for more than 10 days, the dismissal was justified. The collective agreement called for an employee to lose employ- ment if "he is absent without writ- ten notice and without a satisfac- tory reason to the City in excess of ten (10) calendar days from the commencement of absence." Arbitrator Matthew Wilson agreed and dismissed the griev- ance. "As the stipulated facts make clear, (Hatch) did not provide written notice of his absence nor did he provide an explanation for his absence. There was nothing for the City to consider at the time the termination letter was issued to the grievor. Thus, I conclude that (Hatch's) employment was properly terminated pursuant to article 27.06 (iii) of the collective agreement." The blame was due to Hatch's own actions, according to the arbitrator. "(Hatch's) limited access to a telephone while he was in jail is not persuasive since he could have easily advised his lawyer or his father that the City should be updated on the details of his ab- sence," said Wilson. "If that occurred, the City would have to persuade me that the reason was not satisfactory as that term is used in article 27.06. But, that did not occur as no rea- son was ever provided to the City," said Wilson. "At some point during that per- iod, it was incumbent on (Hatch), either himself or through his agents, to advise the City of the reason for his absence." "At the very least, once he was denied bail and was aware that his incarceration was being ex- tended, he had an obligation to notify his employer either dir- ectly or through his agents," said Wilson. Reference: City of Toronto and Toronto Civic Employees' Union, Local 416. Matthew Wilson — arbitrator. Swarna Perinparajah for the employer. Kiran Kang for the employee. Aug. 27, 2018. No written explanation for absence presented by employee

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