Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 June 23, 2014 ArbitrAtion AwArds received a recall notice from Air Canada. She informed management she had booked a cruise for the first two weeks of January and was told it would not be a prob- lem, provided she could arrange shift trades or allot vacation time. However, on Dec. 29 — the day before her scheduled cruise departure — SA informed Air Canada she could not work due to sick leave, and while she pro- vided a medical note for a three- day leave, she followed up with an email saying the leave was to be extended until Jan. 13. That also happened to be the day she was scheduled to return from her cruise. Not surprisingly, the company brought its suspicions to SA. Nu- merous attempts to obtain her medical records were unsuccess- ful but, after some more digging on the employer's part, it was discovered that while the woman had claimed to be too sick to work for Air Canada, she had in fact been working for her other em- ployer. When pressed on the matter, SA said her condition made her uncomfortable when dealing with the public, whereas her other job did not involve such interactions. As such, Air Canada offered her temporary accommodation upon her return to work. The employee declined, saying she would return to work pend- ing her doctor's approval. Again, when pressed for documentation, SA waffled and none was present- ed. The issue came to a head in March, when Air Canada ordered a suspension pending discharge. Grievance filed On SA's behalf, Unifor Local 2002 filed a grievance. Various stress- ors in her life — including the passing of her brother in the sum- mer of 2013 and the breakdown of a relationship in December that same year — contributed to her inability to provide medical docu- mentation in a timely manner. Further, Unifor revealed she did indeed take the cruise but she thought it would combat her de- pression. Air Canada, on the other hand, argued SA's ability to maintain full-time employment elsewhere, even after she was offered tempo- rary accommodation, was indica- tive of her inconsistency. "She is clearly focused on her alternative employment and has not fulfilled her basic employ- ment obligations at Air Canada," the company's counsel argued. In his decision, arbitrator James Hayes looked first at the credibility of SA and, secondly, at the adequacy of the medical in- formation provided. On the initial issue, Hayes con- cluded SA actively misled not only her employer but her union as well, as the fact that she did go on the cruise came out only dur- ing the hearing itself. Further, while it is not always easy to obtain medical informa- tion, given the timeline and per- sistent requests, Hayes said SA had more than enough time to co-operate had she genuinely wished to do so. Even at the hearing, all of the medical notation alluded to in her arguments could not be pre- sented. "If there is any possible medi- cal explanation for her prolonged deceit, none was even suggested," his decision read. "Nor has there been any medi- cal explanation as to how it is that the grievor may work full-time for someone else, but not at all for Air Canada. All we have are the griev- or's assertions, a grievor who, un- fortunately, has shown that she lacks credibility." As such, the grievance was dis- missed. reference: Air Canada and Unifor Local 2002. James Hayes — arbitrator Kevin Pavelack for the employer, Cheryl Robinson for the union. June 16, 2014. employer doesn't bend for yoga course meGAn meLLquist was fired from her full-time position as a lifeguard at the Temple Gardens Mineral Spa in Moose Jaw, Sask., after she failed to return to work following a leave of absence. Mellquist started working for the employer when she was 15. At the age of 18, she was granted an educational leave of absence to travel to Bali, Indonesia, to train as a Level 1 registered yoga teacher. After successfully completing the level, however, Mellquist was approached by the owner of the yoga school and offered the op- portunity to stay on for Level 2. The training fees would be waived and Mellquist's housing and food would be provided free of charge. The offer was made just 18 hours before Mellquist was scheduled to fly home. Mellquist was able to change her return flight for an additional fee. She sent an email to her man- ager at Temple Gardens request- ing an extended leave to complete the Level 2 course. The employer asked Mellquist to provide a valid airline ticket for her return to Sas- katchewan as originally planned. In a followup email, Mellquist did not address the request, testify- ing during arbitration she did not believe her original ticket was rel- evant to the extended leave. Her request was refused, as the employer believed Mellquist had been dishonest about the course from the beginning and had no in- tention of returning to work. The refusal included references to the short notice of Mellquist's request and her failure to provide the em- ployer with proof of her original flight. Mellquist chose to stay and complete the course without an extended leave of absence, return- ing to Moose Jaw on July 8, 2013. Four days later, she received a ter- mination letter. The Saskatchewan Joint Board, Retail, Wholesale and Depart- ment Store Union filed grievances on Mellquist's behalf, grieving both the refusal of her request for an extended leave of absence and her termination. The union asked that she be reinstated and made whole. The arbitration board — made up of chair William F.J. Hood, employer representative Fergie Reynolds and union representa- tive Gloria Cymbalisty — found the employer was wrong when it denied Mellquist's request for extended leave. While the board agreed the notice was short, it found Mellquist provided notice promptly given the circumstances. The other reason for refus- ing the extension was Mellquist's choice not to answer her man- ager's question about her airline ticket. The board found this re- quest was a direct attack on Mel- lquist's honesty. Her manager doubted whether she had ever intended to return to work. The leave was therefore denied with- out any attempt to accommodate. After hearing and seeing the evidence, the employer acknowl- edged that Mellquist was not deceitful. The board did find, however, that the opportunity to continue her studies did not detract from Mellquist's obligations to the em- ployer to attend work. Mellquist was found to have been insubor- dinate in her failure to return to work as agreed, though the board found termination to be excessive considering the circumstances. "A key, if not the main and un- derlying, reason for the refusal and the termination was the em- ployer's mistaken belief the griev- or lied," the board ruled. "We are of the view the employer's unsub- stantiated claim the grievor was dishonest is a mitigating factor in favour of the grievor for a lesser penalty." The dismissal was substituted for a warning and the board or- dered Mellquist be reinstated to the full-time position she held at the time of termination, adding she be made whole for the loss of pay, benefits and any seniority re- sulting from the dismissal. reference: Temple Gardens Mineral Spa and the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union. Arbitration board — William F.J. Hood, chair; Fergie Reynolds, employer; Gloria Cymbalisty, union. May 30, 2014. < from pg. 1

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