Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 January 12, 2016 ARBITRATION AWARDS B.C., operation but at the time their positions were eliminated, they were also on medical leave and in receipt of long-term dis- ability payments. While Nijjer was still receiving the benefit, McEwen came off his benefit as a result of his being re- trained and taking employment with another employer. He was not able to perform any other jobs with Canadian Forest Products as a result of his medical circum- stances. Both the employer and the union, the United Steelworkers Local I-424, agreed Nijjer's claim for severance pay had not yet crystallized due to the fact he re- mained on medical leave. However, with respect to Mc- Ewen, the union said he became entitled to the benefit when he came off of his medical leave and his long-term disability benefits stopped rolling in. The employer, on the other hand, said McEwen was never in a position to return to work for the employer, with the result that the termination of his employment was not brought about by the technological change. Instead, leaving the em- ployer was a direct result of his medical condition. Fur- ther, the employer said Mc- Ewen effectively resigned his em- ployment with the employer when he accepted the job at another workplace. In his decision, arbitrator John Kinzie said that, with respect to Nijjer's claim for severance pay, he should await a time if and when he does come off of the long-term disability benefit and is fit to re- turn to work in the employer's op- eration. However, the employee would not be required to formally report to the employer before being en- titled to claim his severance pay as the employer had contended, Kinzie said. With regard to McEwen, Kinzie said that even though he was on a medical leave of absence at the time, he was "displaced" from his regular job of planer grader by the employer's decision to imple- ment a technological change at the Prince George sawmill by in- troducing the new mechanical system. Further, Kinzie said it was upon the union to establish that McEw- en suffered job loss or diminution due to that technological change. The union failed in this regard, Kinzie said. "McEwen would not have been capable of returning to work as a planer grader or in any other ca- pacity with the employer given the nature of his injuries," he said. "McEwen's case from begin- ning to end has been about his medical condition. That condi- tion rendered him unemployable in the Prince George sawmill. "Thus, while he eventually suf- fered job loss with the employer, on the facts before me, it was not because of any mechanization, technological change or automa- tion, within the meaning of the collective agreement; it was be- cause of his medical condition." Therefore, McEwen was not entitled to severance pay and his claim was dismissed. Reference: Canadian Forest Products and the United Steelworkers Local I-424. Michael Wagner for the employer, Natalie Gidora for the union. John Kinzie — arbitrator. Dec. 18, 2015. Employee dismissed after injury-related absence JASON KACSUR was fired on June 26, 2015, after being absent from work for four days. Kacsur's employer — the Windsor, Ont-based Kautex Tex- tron — dismissed him because he was absent without a reasonable excuse. Unifor Local 195 filed a grievance on Kacsur's behalf, ar- guing he did have a reasonable ex- cuse and should be reinstated and given full compensation from the date of his dismissal. In May 2015, Kacsur cut his finger on broken glass while washing dishes at home. The in- jury required stitches but Kacsur continued to attend work. In the weeks following his injury, however, Kacsur became concerned about the cut and attended the emergency department of his local hospital. It was determined Kacsur had cut a tendon when he was injured and had subsequently developed a staph infection. He was prescribed a course of out-patient IV treatments and told to return for a followup. Kacsur was also given an emer- gency room "work note" dated June 12, 2015, that excused him from work for five days. He presented this note to the employer's HR de- partment and was given a "Sickness and Accidents" form to complete. On June 18, Kacsur informed the employer he would return to work on June 22. Later that day, however, he had a follow- up with his doctor and it was recommended he take a period of weeks off work to fully recover. According to Kacsur, another Sickness and Accidents form was completed to relay this information to the employer. But the employer denied being made aware of this subsequent form. On June 26, four days af- ter Kacsur was expected back at work, his employment was termi- nated. According to the employer, workers are required to provide a reasonable excuse for absences in a timely manner. Kacsur did not provide management with a rea- sonable excuse for his absences in a timely manner, it said, and in fact only provided his excuse during arbitration. The union, however, argued the employer's timeliness require- ment should not be read into the parties' collective agreement. Arbitrator Ted Crljenica agreed, saying, "Had the parties intended that the deemed terminated clause be triggered by a failure to provide timely notification to the employer, they could have easily included such a requirement in the article." This does not mean employees are not required to notify the em- ployer when they are unable to attend work as scheduled. Kacsur clearly acted in an irresponsible manner by failing to inform his employer of his inability to work, Crklenica said. However, the parties' collec- tive agreement does not contain a clause specifically requiring em- ployees to provide a reasonable excuse for absences in a timely manner and, therefore, Kacsur was not fired for just cause. As a result, his grievance was allowed and Crljenica ordered Kacsur be reinstated without loss of com- pensation, benefits or seniority. Reference: Kautex Textron and Unifor Local 195. Ted Crljenica — arbitrator. Michael Wills for the employer, Michael P. Renaud for the union. Dec. 17, 2015. The union failed to establish McEwen suffered job loss or diminution. The union argued the employer's timeliness requirement should not be read into the collective agreement.

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