Canadian Labour Reporter

August 10, 2020

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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August 10, 2020 several months of employment. He booked a vacation day for May 21, 2019, which was the day after the Victoria Day holiday. He and his family planned to go to their cottage on the previous Saturday. On May 17, Garland called the company's automated service to say he wouldn't be coming in for his shift due to family illness. Ac- cording to Garland, his wife was ill through the night and he need- ed to stay home to look after her and their young son. The next day, Garland's wife was feeling better so they pro- ceeded with their cottage plans. Garland took his scheduled vaca- tion day and returned to work on May 22, providing a note written by his wife stating that she had been ill on May 17 and Garland "needed an emergency leave day to be home for me and our son." Garland met with the HR man- ager, who said the note wasn't rea- sonable evidence of his absence as it was written by his wife vali- dating her own illness. He asked if Garland had anything else, to which Garland responded it was all he had. On May 24, SAF-Holland is- sued Garland a verbal reprimand. The company didn't necessar- ily believe Garland was being untruthful, but it issued the rep- rimand because he didn't pro- vide reasonable evidence — a requirement that was important to the company because of the historical issues of suspicious ab- senteeism. It also did not provide Garland with holiday pay because he didn't meet the requirement of working his last scheduled day before the holiday. The union argued Garland's absence qualified for family re- sponsibility leave under the On- tario Employment Standards Act, 2000, which entitles employees to a leave of absence for an "illness, injury or medical emergency" of a family member, including the employee's spouse. The act states that the "employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave." SAF-Holland maintained that Garland didn't provide evidence reasonable in the circumstances to prove he was entitled to family responsibility leave. The arbitrator noted that although Garland was a short- service employee, he had no history of absenteeism and the reason for his absence was cred- ible and supported by his wife. The company was focused on whether Garland could provide third-party documentation sup- porting his absence, but since the illness wasn't serious enough to seek medical attention or medi- cation beyond what was at home, there was no such documenta- tion available, said the arbitrator in finding that there was no rea- son not to believe Garland or his wife's note. The arbitrator determined that the information Garland pro- vided was sufficient to constitute evidence reasonable in the cir- cumstances that entitled him to family responsibility leave. With this entitlement, SAF-Holland didn't have just cause to discipline Garland or deny him holiday pay. Reference: SAF-Holland Canada and Unifor, Local 636. Randy Levinson — arbitrator. Brian MacDonald, Darren Avery for employer. Luis Domingues, Scott Smith for union. July 20, 2020. 2020 CarswellOnt 10264 Ontario employer wanted third-party documentation Long service, good performance make firing excessive call or "not available" due to pa- perwork or a break. The Telus code of conduct stated that failing to comply with scheduled start and end times and scheduled breaks was unaccept- able behaviour, as was failing to report absences and tardiness. In April 2015, the worker was given a written warning for ex- tending her breaks on eight occa- sions. A second written warning came in 2016 after she started work late three times, followed by a one-day suspension in 2017 for five occasions of logging in late, five instances of improper coding, and another three occasions of doing both. In February 2018, Telus sus- pended the worker for three days for several instances of tardiness and misuse of the "not available" status. The company warned it was unacceptable and "will not be tolerated going forward." However, seven months later, the worker was suspended for five days after six more occurrences of tardiness and another eight oc- casions of extended breaks. Telus told her that her misconduct was impacting customers, putting an "unfair burden" on her coworkers, and further incidents would lead to discipline up to and including termination. The worker was late five more times in the next five weeks, lead- ing to an investigative meeting. The worker blamed traffic for some of her tardiness and admit- ted that "I'm just terrible" with managing her time. She men- tioned that she suffered from de- pression that may have affected her sleep — though she didn't provide any medical information — and accepted an accommoda- tion of 9:30 a.m. shifts for three months. However, her tardiness continued. On Jan. 30, 2018, the worker was 17 minutes late for a 10:30 a.m. shift. The worker blamed it on traffic and said she never left earlier because she thought she would be on time. She also said she didn't think her tardiness af- fected her coworkers "very much" and she "guessed" it affected cus- tomers if they were busy. Telus terminated her employ- ment. The union argued that the worker's tardiness wasn't culpable due to her depression and termi- nation was excessive discipline. The arbitrator noted that Telus relied on its call centre employ- ees to "sustain productivity levels and customer service in a highly competitive business, in a high de- mand area." If the worker felt her depression was causing her tardi- ness, she didn't use the employee assistance plan or seek medical advice after her suspensions and she frequently blamed it on other factors. "In these circumstances where no medical information was pro- vided to the employer, I cannot find that the [worker's] remarks about her depression were suffi- cient to put the employer on no- tice that they should make further inquiries," said the arbitrator. "The major thrust of the [worker's] rea- sons for her tardiness was almost always traffic, or her inability to keep on time." The arbitrator found that the worker had control over things such as setting an alarm clock or not allowing time for traffic. In ad- dition, she sought to minimize the effects of her tardiness. Her mis- conduct was culpable and worthy of discipline, said the arbitrator. However, the arbitrator agreed that termination was excessive. The worker's 29 years of service and good performance record outside of her tardiness, along with her age and the uncertainty of the job market were mitigat- ing factors. Telus was ordered to reinstate the worker, but on a six- month probationary period with no compensation for lost wages. Reference: Telus Communications and Telecommunication Workers Union, USW, Local 1944. Karen Nordlinger — arbitrator. Alex Mitchell for employer. Tamara Marshall for union. June 29, 2020. 2020 CarswellNat 2707

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