Employee's failure to follow procedure for calling in sick was likely because of depression: Arbitrator
An Ontario employer discriminated against an employee with mental illness when it fired him for unauthorized absences after he stopped calling in sick, an arbitrator has ruled.
Chris McGarrity worked for Chicopee Manufacturing, a maker of aircraft parts in Kitchener, Ont. He was subject to the collective agreement that stated if an employee was absent for work without permission for three days in a row, the employee was deemed to have quit his job. The provision allowed for an exception if the employee could establish that the absence was “beyond the employee’s control.”
During his 15 years with Chicopee, McGarrity was disciplined multiple times for missing or being late for work, to the point he was counselled on the importance of arriving on time or properly calling in sick at the beginning of the workday.
On June 22, 2011, McGarrity left work early because he was feeling sick. He did the same the next day and on the third day, he called in sick and said he had a doctor’s note. However, he didn’t bring the note and said his doctor was supposed to fax it. He missed two more days that week, saying he had high blood pressure and his doctor told him to rest, but he would return to work on July 4.
McGarrity called in sick on July 4, saying he would be back the next day. He called the next day and said a doctor’s note would be faxed. Chicopee didn’t receive the note, and McGarrity called in sick again. On July 12, he brought in a doctor’s note saying he would be off work until July 22, which was followed by a plant shut-down for two weeks.
On the first day of the plant’s re-opening, Aug. 8, McGarrity called in sick and said he should be back the next day. He wasn’t and called in sick again. On Aug. 10, he called the union to say he wouldn’t be back until Aug. 15 and he would bring documentation. McGarrity then called in sick on Aug. 15 and 17, after which Chicopee didn’t hear from him.
After two weeks of silence, McGarrity called on Aug. 30 to say he wouldn’t be in and his doctor would fax a note. The note didn’t come and McGarrity remained absent without further communication.
Unbeknownst to Chicopee, McGarrity was using drugs, feeling depressed and had a thyroid problem. The company was aware of some past issues in 2009, when he had taken a few months off work following a breakdown, but it was unaware of any health problems in 2011, and McGarrity didn’t indicate the reason for his absences. He claimed he thought his doctor faxed a note on Aug. 17 that explained he was off sick, which is why he didn’t call in after that. However, he had not discussed with his doctor how long he would be off.
On Sept. 8, Chicopee deemed McGarrity to have quit his job under the collective agreement and terminated his employment.
The arbitrator agreed that McGarrity had a disability from his mental health issues and thyroid problem. McGarrity was also aware of the policy that he had to call in sick and provide documentation for his absences. The fact he called in sick nearly every day for more than a month showed he knew about it.
However, the arbitrator found that it was likely McGarrity stopped calling because, as McGarrity testified, he felt depressed and ashamed. McGarrity couldn’t explain why he stopped calling, but he was diagnosed with major depressive disorder. Though McGarrity’s failure to call wasn’t technically beyond his control, the arbitrator found it was related to his mental illness. Therefore, when Chicopee terminated McGarrity’s employment for failing to call in, it was discriminating against him based on his disability, said the arbitrator.
