3 weeks of calling in sick grows stale at Sobey’s (Legal View)

Worker didn’t provide any new medical documentation, said company knew of back injury
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/10/2012

An Ontario employer was entitled to fire an employee who didn’t reply to a request for medical documentation after three weeks of calling in sick, an arbitrator has ruled.

Peter Morin was a night-shift warehouse worker at Sobey’s Retail Support Centre in Milton, Ont. He was hired in March 2003. By early 2012, Sobey’s became concerned with Morin’s attendance. He called in sick many times, often without providing medical documents supporting his inability to work.

The collective agreement stipulated employment could be terminated when an employee was absent from work because of illness and didn’t provide a medical certificate verifying the illness. The agreement also gave cause for dismissal if an employee was absent without authorization for three scheduled workdays in a row without a valid reason.

On April 9, 2012, Morin called in sick using the company’s call-in system. He missed all 16 of his shifts over the next three weeks, calling in sick each day, without providing medical documentation. Eight of the shifts were considered unexcused personal absences and eight were recorded as sick with no doctor’s note. During this time, Morin worked 15 shifts at another job.

Sobey’s sent a registered letter to Morin on April 30, which informed Morin he was expected to return to work as soon as possible, but no later than May 14, with medical documentation supporting his three weeks of absences. The letter also stated that if he was unable to return to his regular duties, he must advise Sobey’s HR department immediately so it could make arrangements for modified work and send the medical documentation.

If Morin didn’t provide any information or return to work, Sobey’s said it would consider him to have abandoned his job.

Morin didn’t return to work by May 14, nor did he respond to the letter, despite an additional 10 scheduled shifts between the letter and the deadline. He called in sick for each shift without providing any reasons, and he worked at his other job on most of those days.

With its request seemingly ignored by Morin, Sobey’s terminated his employment effective May 17.

Morin grieved the dismissal, claiming his absences were because of a flare-up of a back problem and his other job involved lighter work. He didn’t provide any medical documentation because Sobey’s had been aware of his back injury two years earlier and the medical documentation he supplied at the time — which said his symptoms came and went —should have been sufficient, he said. Morin also said he realized he should have responded to the April 30 letter and he “screwed up” by not doing so.

The arbitrator noted that because the collective agreement had a provision outlining the number of absences without authorization that triggered dismissal, it was a matter of contractual rights, not discipline.

In this case, there was no dispute Morin’s absences crossed the collective agreement threshold for termination.

The arbitrator found there was no special accommodation in Morin’s previous medical documentation and he was able to return to full duties after hurting his back in 2010. There was also no request for accommodation during his more recent absences.

Without any valid reason provided for the absences, Sobey’s was entitled to ask for medical documentation. Morin’s lack of response, which he admitted was a mistake, was “at his peril” and made the absences fall within the collective agreement provision for unauthorized absences. Sobey’s was, therefore, entitled to apply the provision and terminate Morin’s employment, said the arbitrator.

“Choices bring consequences. (Morin) chose not to respond to the company’s April 30, 2012, letter and he chose to come to the hearing without more than an admission that he ‘screwed up,’” said the arbitrator. “The consequence of (Morin’s) inaction and ‘screw-up’ in this case is the termination of his employment with the company.”

For more information see:

Sobey’s Milton Retail Support Centre and UFCW, Local 175 (Morin), Re, 2012 CarswellOnt 10354 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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