April 2019 | News
Medical note recommended a regular, steady shift
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Khan was told to report to
work for the night shift on May
11, but he didn't show up. On
May 16, he was suspended for
five days for continuing his in-
subordinate behaviour and un-
supported absences. The sus-
pension letter warned he would
be terminated for any further
incidents.
Khan didn't report for his first
scheduled shift after the suspen-
sion on May 23 and didn't call in
his absence. Nestle then termi-
nated his employment.
Negative impact on business
The arbitrator noted Khan didn't
raise any medical reasons at the
initial suspension meeting as an
explanation for his absences or
at any time before the grievance
meeting to discuss the suspen-
sion. With no explanation for
the absences and his refusal to
attend work as directed — which
was insubordination — Khan
presented "a direct challenge to
the employer's ability to oper-
ate its business." Nestle had just
cause to impose a three-day sus-
pension, the arbitrator said.
The arbitrator found that
Nestle was entitled to "reach the
conclusion that moving (Khan)
to the night shift did not conflict
with his medical restrictions,"
as the medical note it already
had didn't support Khan's claim.
Since Khan continued to insist
he was incapable of working the
night shift, the onus was on him
to provide medical information
supporting his case — which
Nestle afforded him the oppor-
tunity to do by providing another
form for his doctor to complete.
Khan didn't provide any more
medical information, so Nestle
could stick with its conclusion,
said the arbitrator.
The arbitrator also found
Nestle followed the principles
of progressive discipline — a
suspension followed by a more
severe suspension followed by
termination, with warnings ac-
companying each suspension.
Khan didn't change his conduct
in any way at each of these stages
and ought to have known his job
was in jeopardy.
"When (Khan) received the
five-day suspension, he was
cautioned that failure to report
for the shift (at the end of his
suspension) would result in his
employment being terminated.
He ignored that warning," the
arbitrator said.
The arbitrator found Khan
knew what he was doing when
he refused to report to work for
the night shift and then stopped
working completely. This had
a negative impact on Nestle,
which had to find replacements
for him, and the other employ-
ees, who were required to work
additional hours.
Khan's insubordinate refusal
to accept the shift change, his
unsupported absences, and dis-
respectful conduct showed it
was unlikely he would change his
ways and gave Nestle just cause
to terminate his employment,
the arbitrator said in dismissing
the grievance.
For more information see:
• Unifor, Local 252 and Nestle
Canada Inc. (Khan), Re, 2019
CarswellOnt 345 (Ont. Arb.).
Lights out < pg. 6
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The employee presented
'a direct challenge to the employer's
ability to operate its business.'