Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was dismissal unfair due to the worker's medical condition? OR Was there just cause for dismissal? Employer mines for doctor's note supporting worker's absence THIS INSTALMENT of You Make the Call features an Ontario mine worker who was absent without medical documentation a little too long for the employer's taste. Dan Pawluk, 53, was hired in September 2003 by the Lac des Iles Mine in northern Ontario, about 300 km from under Bay. e mine was shut down and the company rehired him in June 2010 as a truck driver and heavy equipment operator, along with other duties. Pawluk developed pain in his hips, so he was given a job with the same pay but didn't include production bonuses he enjoyed in his old job. Pawluk joined a mobile shop where he was responsible for the fuelling, oiling, and lubing of mine equipment, along with assisting mechanics in the shop. Pawluk's shift schedule involved seven days on and seven days off . During his off - time, he would return to his home in a small community that was some distance away from the mine and was fairly isolated. Paw- luk frequently missed the fi rst day of his seven-day shift run and often asked to be re- lieved of his last day, claiming his truck broke down or his ride wasn't available. Pawluk was also absent for extended pe- riods due to his hip problems. In 2012, he missed two weeks due to alleged medical reasons, but provided no medical documen- tation or a return-to-work date. His supervi- sor fi nally demanded that he return to work. In late December 2012, Pawluk went off work and didn't return for nearly four months. During this time, the mine had dif- fi culty keeping in touch with him to fi nd out when he might be able to return to work — at one point, the company contacted the police to fi nd him. e mine off ered him the servic- es of a doctor it kept on retainer in under Bay, but Pawluk said it would be too expen- sive to travel there. e mine off ered to help with the cost, but Pawluk still refused. Pawluk returned to work on April 13, 2013, without providing a medical report. Eleven months later, on March 18, 2014, Pawluk was on the sixth day of a seven-day shift rotation. He asked his supervisor for a vacation day for the next day, but the super- visor denied the request because the notice was too short to cover the shift. Pawluk didn't show up for work the next day and didn't call in — company protocol was for an employee to contact his supervi- sor and the mine's occupational health nurse for any medical absence. After not hearing from Pawluk for two days, the mine tried unsuccessfully to contact him. On March 22, Pawluk replied by email saying he was con- fi ned to his bed and unable to return to work "for the rest of my run." e mine made several other attempts to contact Pawluk for information so it could process short-term disability papers, but heard nothing until a fax from Pawluk's doc- tor on April 1 stating Pawluk was "totally disabled" and would return to work on April 16. On April 15, Pawluk sent a fax saying he couldn't return because he had a doctor's ap- pointment on April 18, of which he would inform the mine of the outcome. Nothing further was heard from Pawluk, despite more emails to him, and by April 24 there was still no medical information nor any indication when he would be able to return. Pawluk's supervisor emailed him saying medical documentation supporting his absence was required by April 28 or his employment would be terminated. Pawluk again failed to get in touch and the mine terminated his employment on May 8. Pawluk contested the termination, claiming his absence was due to hip and back pain and he was unable to work. He also said he didn't respond to many of his employers emails and calls because his phone and Internet service had been discontinued for non-payment and was unaware of the deadline for medical information. IF YOU SAID there was just cause for dis- missal, you're right. e arbitrator noted that the mine's policies and practices on unauthorized absences weren't as clear as they could be, but Pawluk provided no doc- umentation of a medical disability before he was terminated. e arbitrator found that the mine went "well beyond its contractual duty" in trying to accommodate Pawluk's absence by con- tinuing its attempts to contact him during his four-month absence and other absences — even calling the police to ensure he was OK — but Pawluk's absences in early 2013 and March 2014 both featured no communi- cation or medical documentation. is indi- cated Pawluk hadn't learned anything from his earlier absence and led his employer to conclude it couldn't expect any reasonable explanation for his latest absence, said the arbitrator. In addition, Pawluk breached procedure by failing to maintain contact during his absence. "While I am troubled by (Pawluk's) medi- cal status, he has only himself to blame for failing to make that the central issue be- fore me," said the arbitrator in upholding the termination. See Lac des Iles and USW (Pawluk), Re, 2015 CarswellOnt 13855 (Ont. Arb.).

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