Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 due to illness or injury must "inform their supervisor or general manager prior to the commencement of his next scheduled shift or as soon as reasonably possible thereafter." e interim assistant general manager also gave new employees his cellphone num- ber and posted shift schedules two to three weeks in advance. Campbell and two other labourers each worked every third weekend. In her first couple of months of employ- ment in late 2015, Campbell only missed one day out of 38 she was scheduled to work. However, she missed 10 days in the first half of 2016 and 44 in the second half of the year. She ultimately missed more than 20 per cent of her 2016 scheduled shifts. Campbell started off 2017 much better, not missing a day until Feb. 9, when she text- ed the assistant general manager saying she was ill. She texted the next three days as well, and the assistant general manager texted her back to remind her to call the engineering staff line, since he wasn't at work the latter two days. Campbell remained off work until Feb. 17, texting the assistant general manager each day until then, finally saying she was sup- posed to be receiving results that day and would let him know. On her next scheduled day, Feb. 21, the centre didn't receive any communication from her and there was nothing on the white board. e assistant general manager said he had "no clue as to how long she might be off." Campbell texted on Feb. 22 to say she would be able to come back the next day, but she notified the centre each scheduled day of work through to March 1 that she was "still sick." ere no further messages from Campbell for the next four days and nothing was put on the white board. Campbell began texting again that she was still sick on March 6 and the next two days, until the assistant general manager asked her when she would be returning to work. Campbell replied that she would be seeing the doctor the next day and would know then, but later texted that more tests were being done and she would know early the next week. Campbell sent more texts saying she was still sick through March 20, when she said she could return to normal duties on March 27 after she received some test results. How- ever, the results didn't come in and she text- ed on March 28 that she would be back two days later. Campbell came to work on March 30 and gave six doctor's notes to the assistant gener- al manager. e notes were standard forms, stating Campbell's name, date of illness, and the fact she had sought health advice and "would have been required to be off work during the time indicated above." One of the notes was from a doctor who wasn't Camp- bell's regular physician, wasn't based on a direct examination, and covered the period from March 11 to 29. e assistant general manager and the facilities manager went through the notes and determined they were insufficient to support Campbell's absences. e same day, they gave her a termination letter and told her to empty her locker and leave her jacket. e termination letter stated that Campbell had been off for 36 working days in a row and had missed 90 days because of illness in the past 13 months. It also said she failed to call in on a regular basis, only texting the assis- tant general manager, and because she didn't notify anyone for absences from March 2 to 5, 2017 — a violation of the collective agreement, which stated employees absent more than three days without notifying the employer were subject to termination — she was being terminated. e union filed a grievance, arguing the collective agreement's provision on notify- ing the supervisor or general manager didn't require "notice each day" and Campbell ef- fectively gave notice on a continuous basis between Feb. 9 and March 28. e arbitrator noted that Campbell's ab- senteeism and the quality of her doctor's notes were "the subject of legitimate con- cern" for the centre, but the crux of its stated reason for termination was the collective agreement's provision allowing termination for more than three working days without notification. e arbitrator found that Campbell sent 21 different texts to the assistant general manager on 15 different days between Feb. 9 and March 1, 2017. ough her call-ins to the engineering staff line were more incon- sistent and not supported by any evidence, the text messages made it clear to the em- ployer that Campbell was ill, said the arbi- trator. e Keystone Centre interpreted the col- lective agreement provision requiring em- ployees off sick to "inform their supervisor or general manager prior to the commence- ment of his next scheduled shift or as soon as reasonably possible thereafter" to mean daily reporting was necessary. However, the arbitrator found there was no specific con- sequence indicated for a failure to comply, and if an employee was sick for a period of time, a lack of daily reporting didn't mean the employer didn't know the employee was still sick, said the arbitrator. "It is my view that (Campbell) did notify the employer, repeatedly, in accordance with the requirements of (the collective agree- ment), and that her silence on March 2, 3, 4, and 5, 2017 did not trigger the operation of the article (on informing the supervisor of absences)," said the arbitrator. e arbitrator also found that the em- ployer didn't challenge the doctor's notes at the time Campbell provided them and didn't allow Campbell the chance to address its concerns. As a result, the notes couldn't be a factor in the decision to terminate. e Keystone Centre was ordered to rein- state Campbell with no loss of seniority but with only 65 per cent of the compensation she lost since her termination, in recognition of her poor attendance record — she only worked 64 per cent of her scheduled shifts in the year leading up to her termination. See CUPE, Local 69 and Keystone Agricultural and Recreational Centre, Inc. (Campbell), Re, 2017 CarswellMan 620 (Man. Arb.). Canadian Employment Law Today | 7 More Cases Worker didn't call in every day of her absence « from TEXTING IN SICK on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, benefits during the notice period, and Ontario's new employment law changes. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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