Canadian Labour Reporter

to a work injury that occurred in 2010, which resulted in ongoing pain in her back. She said the pain got so intense at times that she was unable to work. The worker also was a single mother with an elderly mother who lived with her and required frequent special care which often required the worker to be absent from work. In October 2013, Winners implemented an attendance man- agement program (AMP). The program started with three infor- mal stages, and if this didn't im- prove an employee's attendance, the employee would be put into a formal attendance process. In October 2014, the worker's mother developed a kidney prob- lem that caused the worker to stay home with her. The worker paid for her sister to come from Guy- ana to help out. At this point, she had racked up 114 absences in 2014, which by then had placed her in the third stage of the infor- mal part of the AMP process. On Oct. 22, Winners sent a let- ter to the worker outlining the fact she had 171 days of unscheduled absences since Sept. 23, 2013, for which the company had not re- ceived medical documentation to support them — the collective agreement stipulated that the employer could demand reason- able proof of illness for absences of three consecutive days or more. At the time, she had not been at work since Sept. 7. The company requested documentation by Nov. 5 so it could assess if it needed to accommodate her. Six days later, the company held a third-stage informal attendance meeting with the worker. Winners also provided a let- ter for the worker's physician that asked for information on the na- ture of the worker's condition, any restrictions, her prognosis, and any treatment. Attendance improved After the attendance meeting, the worker's attendance improved dramatically. She later testified this was because her physician had given her cortisone shots and exercises to perform that lessened the pain in her back and shoulder, and her sister was around to help with her mother. However, the worker failed to provide documents support her previous absences. She had pre- viously provided some medical certificates referencing back and shoulder pain, as well as "tak- ing care of her mother," for some absences but she explained she couldn't afford to pay the $200 cost her physician required to complete the information form. Winners terminated her employ- ment on Nov. 26. Winner's explained it wasn't required to accommodate her personal choice of caring for her mother on her own, rather than hiring someone to help, and the fact she had been at work every day for the past month showed her injuries had not been affect- ing her to the point where she needed to be absent as much as she was. On Dec. 22, the Workers Unit- ed Canada Council union pro- vided the completed letter from the worker's physician indicating the worker suffered from low back pain but had no specific restric- tions. The physician indicated the worker could return to work im- mediately. Winners agreed to reinstate the worker with a last-chance agree- ment requiring her to maintain an absence rate at or below "the facility two-month average" over four reporting periods. By Aug. 1, 2015, the worker took three sick days, while the facility average was just over 1.5 days. Winners termi- nated the worker's employment a second time for breaching her last-chance agreement. Arbitrator Brian Sheehan found that, given the amount of absences on the worker's record and the collective agreement, Winners request for medical information was reasonable. Though it didn't need to know the details, the company was entitled to information on the worker's current state of health . While the worker did provide medical certificates for some of her ab- sences, the reasons given were "either non-existent or skeletal at best." And despite Winners grant- ing three extensions, the worker couldn't provide further informa- tion in a timely manner, which also amounted to insubordina- tion, said Sheehan. Sheehan didn't buy the worker's excuse that she couldn't afford the $200 to pay her physician to com- plete the questionnaire. The evi- dence showed the worker earned more than $5,000 in November 2015 and paid for her sister to visit from Guyana. It was likely the worker did suf- fer from legitimate medical issues such as back and shoulder pain, but the medical evidence she pro- vided was "paper thin" and she suddenly was able to work every day without any problems after she was warned her job may be in jeopardy, said the arbitrator. Sheehan also found it was in- cumbent upon the worker to at- tempt to arrange alternate care ar- rangements for her mother, so she could fulfill her obligation to work as scheduled. However, Sheehan noted that Winners didn't take action on the worker's absences until the Octo- ber 2014 letter, accepting the pre- vious medical notes without ques- tion and not directly challenging the absences in the years before then. Also in the worker's favour was the fact that she started attending work consistently after the let- ter and hardly missed any time in the month before her dismissal. This demonstrated a likelihood her attendance would continue to improve going forward, said Sheehan. Winners was ordered to re- instate the worker with a one- month suspension replacing her termination on her record — but no compensation for lost wages and benefits, in order to send the message that the worker must at- tend work as scheduled and be- cause she continued to insist that the $200 cost kept her from pro- viding medical information in a timely manner. For more information see: • Winners Merchants Intl. LP and Workers United Canada Coun- cil (Ali), Re, 2016 CarswellOnt 16376 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Driver pg. 1 Employee fired second time after breaching last-chance deal Photo: Chinnapong (Shutterstock)

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