Mosaic Potash too suspicious of timing around medical leave: Arbitrator

Employee went on stress leave after vacation request denied
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 09/15/2014

A Saskatchewan employer did not have just cause to dismiss an employee who was observed doing landscape work while on medical leave for stress, an arbitrator has ruled.

Steve Fonstad began employment as a labourer with Mosaic Potash, a potash mine operator near Colonsay, Sask., in October 2007. He was eventually promoted to the position of rehab operator, a position that involved operating a large machine underground that ran a scoop behind the mining machine that cut rock. Fonstad had a clean disciplinary record with Mosaic.

The company had a common practice employees followed when they took vacation leave. They were required to complete an absence authorization form, which described the period of time for which the request was being made.

Employees then submitted the form to a supervisor for approval, who then forwarded it to the superintendent for final approval.

On May 8, 2012, Fonstad completed an absence authorization form requesting vacation leave on May 22 and returning May 28. The reason for the request was that he wanted to attend his grandmother’s birthday celebration.

His supervisor initially approved the request and passed it along to the superintendent.

Fonstad also had a wedding he wanted to attend in June so, on the same day, he completed another form requesting vacation from June 7 to 14.

He then submitted the second form to a different supervisor, who also approved it and forwarded it to the superintendent.

Fonstad later testified that the first supervisor had already left the mine and the second supervisor was there at the end of his shift, which is why he gave the second form to a different supervisor.

Vacation conflict

However, Mosaic had a vacation shutdown scheduled in July and employees were required to keep 80 hours of vacation time available to use during the shutdown. Fonstad had 120 hours of vacation time available, but his two requests totalled 70 hours. When Fonstad’s requests were processed, his June vacation request was cancelled.

Fonstad told his regular supervisor he would prefer to cancel the May request and take the June vacation, and the supervisor said he would take care of it. However, Fonstad later received documentation approving both vacation requests.

Confused, Fonstad went to the HR department for an explanation. He then met with his supervisor, who advised him it was an error and his May leave wasn’t approved. He asked why both requests were approved, but the supervisor just said he couldn’t take both.

According to Fonstad, the supervisor became loud and intimidating, making him upset. Fonstad said he was going to HR to talk about how he was being treated.

The next day, feeling stressed from the meeting, Fonstad felt he couldn’t go underground and safely operate heavy machinery. He decided to take the one personal day provided for in the collective agreement.

He called the mine before his shift and informed the second supervisor he was taking the day off for personal reasons, which followed protocol. The supervisor later called back to check on him, as he was concerned about Fonstad after his reaction to the vacation request confusion.

Fonstad’s next scheduled shift was on May 22, the first day of his original vacation request. He was still feeling stressed and he was also experiencing pain in his testicles, so he called in before his shift and said he wasn’t coming in to work.

But the supervisor was suspicious Fonstad was using sick leave to get the week off that he originally wanted, and he told Fonstad “We’re not taking it” and “We can’t accept this.”

That day, Fonstad saw his doctor, who recommended he take three weeks off work. He stayed home and didn’t go to his grandmother’s birthday party that week.

He called Mosaic’s occupational health nurse and reported he would be off work for three weeks due to stress and situational anxiety stemming from conflict with “people at work,” as well as health problems for which he would be getting tests done the following week.

He then sent Mosaic a doctor’s note stating he would be off work for three weeks “due to medical reasons.”

A couple of weeks later, Fonstad provided a second note from his doctor stating he was off work for “situational anxiety.” Fonstad started taking medication and applied for short-term disability (STD) benefits. He also attended counselling on the instruction of the Mosaic occupational health nurse.

Employer suspicious over timing

But Mosaic continued to be suspicious about the timing of Fonstad’s sick leave, so it hired an investigator to conduct surveillance on Fonstad. Over two days in early June, the investigator recorded more than four hours of video of Fonstad operating a Bobcat machine, shovelling gravel and doing landscape work.

Fonstad owned a landscaping business on the side and Mosaic was aware of the business, which Fonstad had never tried to hide — the business name was even on the side of the truck he usually drove to work.

On June 18, 2012, Fonstad contacted Mosaic’s occupational health nurse and informed her he was cleared to return to work the next day. He faxed his doctor’s documentation — which stated no operation of heavy equipment for a week until the effect of his medications was assessed.

When Fonstad returned to Mosaic, he was called into a meeting in which Mosaic suspended him without pay pending an investigation. Mosaic demanded all records of his business during his medical leave and medical documents supporting his absence by June 26, after which it would complete its investigation.

Fonstad — believing he had nothing to hide and the landscape work for his business was nowhere near as stressful or taxing as his work in the mine — provided his personal medical information and details on the work he performed while on leave, which he listed as unpaid work.

Mosaic determined the medical documentation did not support the sick leave he took after his vacation request was denied, considering he performed manual labour and operated heavy equipment for his landscaping business during that time.

The company terminated Fonstad’s employment on Aug. 7 for being “dishonest and duplicitous about being medically unable to perform work at Mosaic, and (seeking) a medical note simply because your vacation leave was denied.”

The union grieved the dismissal, arguing Fonstad was not dishonest: His medical leave was not because he was unable to perform physical work, but rather he was mentally unable to perform his work at the mine, and he had never tried to hide his side business from Mosaic.

Mosaic responded by pointing out the collective agreement stipulated that an employee’s seniority would be lost if he worked for another employer while absent from Mosaic, unless the company approved the work or the employee was laid off for lack of work.

The arbitrator noted that at the time of Fonstad’s termination, the reasons Mosaic gave were “dishonesty and duplicity.” Working for another employer was not given as a reason for termination and could not be considered part of the company’s charge of dishonesty at the time of dismissal, as Fonstad never lied about doing the work, said the arbitrator.

But it was understandable for Mosaic to be suspicious when Fonstad took sick leave after being denied vacation leave for the same time period, said the arbitrator, and even more so when it learned he was doing landscape work while off work.

Company only sought
to support its suspicions

However, Mosaic didn’t seem to be interested in hearing Fonstad’s side of the story, said the arbitrator. After the company suspended him pending an investigation, there were no attempts to uncover any information that might change its suspicion of dishonesty. Fonstad wasn’t given an opportunity to explain his side before being terminated, and the charges of dishonesty were based only on the observations of the investigator.

There was no attempt by Mosaic to learn more about Fonstad’s medical status before it terminated him, which was particularly surprising since one of his supervisors had called him back out of concern when he called in sick, and the initial medical note indicated Fonstad had situational anxiety.

Fonstad co-operated with
Mosaic at every step, found the arbitrator, in providing the information the company requested and following protocol for calling in sick. He also kept communication open with the company and provided additional information when Mosaic demanded more.

The onus was on Mosaic to prove Fonstad wasn’t sick and was dishonest about his sick leave and it failed to meet this onus, said the arbitrator.

The evidence was that Fonstad was suffering from mental stress which prevented him from working in the mine, and he didn’t try to hide his landscape work. As a result, Mosaic did not have just cause to terminate Fonstad’s employment, said the arbitrator.

Also, the reason for requesting the vacation leave in May was so he could attend his grandmother’s birthday, which he didn’t do when he was off sick on the same dates, pointed out the arbitrator.

“(Fonstad) was unwilling and unable to work in the mine and operate dangerous mine equipment and place the life of his co-workers at risk during this period where he suffered from situational anxiety requiring counselling and medication.”

Mosaic was ordered to reinstate Fonstad with full compensation for loss of pay and benefits.

For more information see:

Mosaic Potash Colonsay ULC and USW, Local 7656, Re, 2014 CarswellSask 287 (Sask. Arb.).

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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