Canadian Employment Law Today - sample

Suncor worker fired after calling in sick during wildfires Company claimed worker changed his story on illness, but he properly followed call-in procedure; rejected STD application not fraudulent BY JEFFREY R. SMITH A Suncor oilsands worker who called in sick amongst the confu- sion of the Fort McMurray, Alta., wildfires did not act dishonestly or abuse the company's sick leave program, an arbitrator has ruled. Oil company Suncor operates an oil sands extraction and production site called Firebag in the Wood Buffalo region of Al - berta. Kevin Zwozda was a field operator and production technician there, working in steam production, water production, sulphur recovery, and in the water process plant. Hired in 2008, Zwozda lived in Hud - son Bay, Sask. — about 700 kilometres from the Firebag site — with his family. He flew to and from the Firebag camp, where he stayed for several days at a time to work, and had no disciplinary record. Suncor had an integrated disability man - agement (IDM) program that established absence and notification procedures for em- ployees who were too sick to come to work — if they were off work for medical reasons, they had to be examined by a licensed phy- sician while experiencing symptoms. Em- ployees were also required to notify their supervisor if they had a health problem that could affect their fitness for work. e procedure for calling in sick, which had been updated and sent to employees on April 8, 2016, required an employee to call the shift supervisor onsite before 8:30 a.m., call the "shift C supervisor" — who kept track of absences and staffing — and call the sick line for direction on what is needed. On May 1, 2016, a wildfire started near Fort McMurray, Alta, which is about 120 kilometres from Suncor's Firebag site. e wildfires spread, causing most of the city to be evacuated. e fires didn't reach the Firebag site, but came within 30 kilometres so its operations were put into "safe" mode — reduced production and staff. Employ - ees who weren't deemed necessary to keep things going were sent home until they were needed again, so it would be easier to evac- uate Firebag if necessary. Zwozda was sent home on May 7, which was two days earlier than the regular end of his shift. However, his plane sat on the runway for two hours due to the smoke in the air, but it soon improved enough for the plane to take off. e day before, Suncor had issued an air quality advisory and provided paper masks for employees, but by May 7 the air quality improved so masks were no longer provided. A week later, on the evening of May 15, the operations supervisor left a message on his home phone saying he was needed at work the next day for a one-week shift because he had experience starting up and shutting down the plants. Zwozda called back a little while later and said he had things to do in the morning, the notice was too short, and wouldn't be able to catch a 9 a.m. flight — normally Suncor arranged flight bookings but in this case it hadn't. He hadn't received any calls on his cellphone and it turned out the supervisor had a wrong number for it. Worker called in absence e next morning, Zwozda texted his shift supervisor — who was the shift C supervisor — to say he had called in sick that morning and wouldn't be making it in, and also called the onsite supervisor. e shift C supervisor didn't tell him to call the IDM representative or sick line because he already had the information, though Zwozda did call the sick line. ree days later Zwozda texted again to say he had dental x-rays done on an in- fected wisdom tooth and he might be having surgery in August or September. Suncor's third-party absence reporting system operator, Morneau Shepell, emailed the shift supervisor a report of Zwozda's absence indicating the reason was "fire — town evacuated" and in the spot indicating if the employee was capable of performing work, it said "n/a" instead of "no." e week of May 23 to 29 was a sched - uled off-week for Zwozda, so he returned to work on May 30. e on-duty shift su- pervisor asked him why he hadn't called the IDM representative while absent, and Zwozda replied that he thought the process had changed because of the wildfires. e supervisor advised him to contact the IDM representative because he had been absent for more than 40 hours, so Zwozda did so. Zwozda told the IDM representative that he had not sought medical treatment or as - sessment during his absence from May 16 to 23. However, he applied for short-term disability (STD) benefits and told an STD adjudicator a few days later that he had been exposed to smoke from the wildfires before evacuation that had caused symptoms, but he didn't seek medical help. e adjudica - tor determined that because he didn't seek medical treatment or assessment during his absence, the absence couldn't be supported under the IDM program. Suncor called an investigation meeting to discuss Zwozda's absence from May 16 to 23. Zwozda explained that on May 16 he "wasn't feeling great" because of smoke symptoms. He said he may have mentioned he had been evacuated on May 7 to the sick line agent, which could be why the rea - son for his absence was reported as "fire — town evacuated." At the time, the call- in agent had asked Zwozda if he was call- ing in sick for that day or his whole cycle, and Zwozda had responded "I don't know yet, probably for part of the cycle anyway." However, the only absence report was for that day, May 16. Confusion over health issues Zwozda was suspended with pay while Suncor investigated his absence. He provided a physician's assessment form completed by his dentist regarding his wisdom tooth but with no details on medication. He told a Suncor health advi- 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: WRONGFUL DISMISSAL MANY EMPLOYERS have disability management programs and established procedures for calling in sick that employees must follow. However, before an employee is disciplined for not following those procedures or abusing sick leave, the employer should look at how it handled the situation with the information it had. BACKGROUND The worker didn't feel he could have worked in any capacity but hadn't sought medical help during his absence.

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