Employee argued employer knew of his back troubles and new medical documentation wasn't necessary
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 warehouse worker for Sobey’s Retail Support Centre in Milton, Ont, hired in March 2003. In early 2012, Sobey’s became concerned with Morin’s attendance. He called in sick many times, often without providing medical documents. The collective agreement stipulated that employment could be terminated when an employee was absent from work because of illness and didn’t provide a medical certificate. The agreement also provided cause for dismissal if an employee was absent without authorization for three scheduled work days 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, but no medical documentation was provided. During this time, Morin worked 15 shifts at another job.
Sobey’s decided to send a letter to Morin on April 30, which informed Morin that he was expected to return to work as soon as possible but no later than May 14, with medical documentation supporting his 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 they could make arrangements for modified work. If he 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. He missed 10 more scheduled shifts, calling in sick for each one without providing any reasons. 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 from a flare-up of a back problem and his other job involved lighter work. He said he didn’t provide any medical documentation because Sobey’s had been aware of his back injury two years earlier and medical documentation he supplied at the time said his symptoms came and went. Morin also said he realized that 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, there was no dispute that Morin’s absences crossed the collective agreement threshold for termination.
The arbitrator found that 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 recent absences. Without any valid reason 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. Sobey’s was then entitled to apply the provision and terminate Morin’s employment, said the arbitrator.
