Canadian Employment Law Today

February 5, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH Continued from page 1 Pavlis decided to allow Wagar to perform occasional shop work but wanted him to continue operating the picker truck when he didn't have his children. Wagar agreed and an arrangement was made in which worked in the shop when he had his children and operated the picker truck when he didn't. Sometimes he would operate the picker truck during the weeks he had his children, but his hours were kept to regular duration. Pavlis considered Wagar to be primarily a picker operator and when picker work was to be done, that was his primary responsibility. In March 2013, Wagar slipped on ice going out to his truck and cracked a rib. He went on workers' compensation. The company's owner was initially upset he was unable to work, but he was able to take the necessary time for recovery. When Wagar returned to work in late March, he worked mostly on a picker truck. On March 29, he had to work overtime on a day he had to pick up his children, so he arranged for his mother to do so. The job wasn't finished and Pavlis wanted him to complete it the next day — a Saturday — but Wagar refused. Wagar indicated he needed regular hours to be with his family and to cancel the next course in his picker certification studies. On April 4, told Pavlis he could no longer run the trucks because it was interfering with his parental duties. Pavlis' owner told him "then there is nothing else for you at Pavlis." Wagar claimed the owner told him to pack up and leave, but the owner denied saying this. Wagar became angry and left the property. Wagar later called the company to say he had been fired and needed a record of employment (ROE). Pavlis issued an ROE stating Wagar had quit. Wagar filed a complaint of unjust dismissal, arguing Pavlis had terminated his employment. The adjudicator preferred the owner's version of the final discussion, finding Pavlis had no motivation to terminate Wagar's employment as he was one of its best picker operators and the company had accommodated Wagar's family responsibilities to that point. The adjudicator found the owner did not tell Wagar to pack up and leave, but rather told him if he wasn't going to run the picker trucks, there was no alternative job. This left it up to Wagar to decide "how serious was his resolve that he would no longer operate the picker trucks," said the adjudicator. The adjudicator found Wagar's intention to resign was clear when he said he would not operate the picker trucks any longer, as well as the request to cancel his certification course. The adjudicator also found Wagar's failure to seek clarification of the owner's response or suggest a different solution, his departure from Pavlis property and his request for an ROE confirmed his intention to resign. See Wagar and Pavlis Trucking Ltd., Re, 2013 CarswellNat 4308 (Can. Labour Code Adj.). Employee not required to call in every day for ongoing absence AN ONTARIO worker who was dismissed for failing to notify her employer regularly for an ongoing absence has been reinstated by an arbitrator. Tracy Miller was an encapsulation operator for Accucaps, a pharmaceutical manufacturer in Windsor, Ont. Miller's position involved 12-hour shifts for two consecutive days followed by two or three days off. Accucaps had a procedure for employees needing to call in to report an absence. If an employee was going to be absent for her shift, she was required to call an answering service and answer a series of standard questions about her name, contact number, the reason for the absence and its expected length. On March 11, 2013, Miller had to leave work early because her father was found unconscious in his home and was taken to the hospital. He ended up going to the intensive care unit (ICU). Miller called Accucaps' answering service that night to report she wouldn't be at work the next day because her father was in the hospital. She said she wasn't sure when she would be able to return to work. Miller called again on March 13 to say her father was still in the ICU and she didn't know when she'd be back to work. The next day she was scheduled to work but didn't show up or contact Accucaps. The company tried to contact her but was unsuccessful. Miller wasn't scheduled to work the next two days, but on March 17 she was expected back. She was a no-show with no call-in. The HR department contacted the union and the union also made an unsuccessful attempt to contact Miller as it needed to inform her she needed documentation to be off work. Miller's next scheduled day of work was March 20. That day, she contacted the answering service to report her ab- sence and repeated her previous messages: her father was still in the ICU and she didn't know when she'd be back. The next day she was scheduled to work and was a no-show with no call. On March 22, the union informed Accucaps that it had been in contact with Miller and she would provide documentation regarding her absences. However, on her next three scheduled shifts, she was a no-show and didn't call, making it four scheduled shifts in a row where she didn't call in. On March 27, Accucaps couriered a letter to Miller informing her that her employment was terminated under the collective agreement, which stipulated termination in the event an employee "fails to return to work or fails to notify the employer of his absence from work for two consecutive scheduled shifts without supplying a reason satisfactory to the employer for such failure." The next day Miller provided a doctor's note that said she was unfit for work, apologizing and saying she made a mistake by not contacting the company. Accucaps did not accept a "mistake" as a reason for not calling in. The union grieved the termination, arguing the employer knew where Miller was and why she was absent. Once she notifed Accucaps and said her absence would be ongoing, she shouldn't have to notify the company continually, it said. Based on the termination letter, the arbitrator found Miller was terminated for failing to notify Accucaps of her absences for three consecutive days, not failing to provide documentation or a good reason for her absences. He also found there was no reason Miller couldn't have taken a few minutes each day to call on her cellphone. However, though Miller didn't call in every day, the arbitrator found it would have been reasonable for Accucaps to know she wasn't coming in to work based on the messages she did leave. Miller told the company her father was in the ICU and she didn't know when she'd be back. "This was clearly a prolonged, ongoing absence and the employer had no information that should reasonably have caused it to expect that (Miller) would report for work until the situation had changed," said the arbitrator. The arbitrator ruled that Miller was not require to notify Accucaps of her ongoing absence every day during the extended absence and her existing messages provided enough information to avoid the collective agreement provision. Accucaps was ordered to reinstate Miller. See Accucaps Industries Ltd. and UNIFOR, Local 15 (Miller), Re, 2013 CarswellOnt 18080 (Ont. Arb. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2014 7

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