Worker went to doctor's appointment anyway after initial request refused
This instalment of You Make the Call features an employee who was terminated for being absent from work after having a day off denied.
Anthony Portelli worked for Kruger Inc., a pulp and paper company in Brampton, Ont. In May 2011, Kruger and its union were in the process of bargaining to renew their collective agreement. As a result, the process for employees requesting a leave of absence or vacation was being centrally reviewed by the plant engineer, rather than going to supervisors. At the time, there was a breakdown in talks and the union was on a work-to-rule campaign where workers were refusing overtime.
On May 16, Portelli requested a leave of absence for May 19 because he had an appointment with a specialist for ankle pain he had been experiencing. The appointment was in the middle of his shift, so he wouldn’t have time to clean up, change and travel to the appointment and back without taking the entire day off. He told his supervisor he had appointments, but was not specific. The supervisor gave him forms to fill out, but they were the wrong forms that didn’t have a space to put the reason for the request. Portelli filled out the forms anyway with the times and date requested.
The plant engineer reviewed the request and, because of a backlog of work and the overtime refusals, denied the day off. The supervisor relayed the refusal to Portelli, who replied with an “OK.” He claimed his understanding was that approval for a paid day off was denied but he could still attend the appointment and not be paid for the day.
On May 19, Portelli was absent from work. The supervisor told the HR manager Portelli had been denied the time off but still didn’t come in, and wanted Portelli suspended. When Portelli came into work the next day, his supervisor asked him what happened and Portelli responded with a shrug. He was called into a meeting with management and union representatives, with the intention of suspending him. However, the HR manager decided Portelli should be dismissed and he was given a termination letter at the meeting. After the termination, Portelli indicated his absence was for medical reasons.
You Make the Call
Should Portelli have been terminated?
OR
Was his absence without approval justified?
If you said Portelli’s absence was justified, you’re right. The arbitrator found that the supervisor gave the HR manager the impression that he had specifically asked Portelli about the reason for the absence when he didn’t, though Portelli didn’t offer a reason, either. A lack of communication may have resulted in Portelli’s assumption he could still take unpaid time off for the appointment, said the arbitrator.
The arbitrator found Portelli’s initial mention of an appointment when he asked his supervisor for the day off was sufficient information for the employer to serve as a reason, which the supervisor should have passed on. This notification met the obligation under Ontario’s Employment Standards Act, 2000, for unpaid personal emergency leave. Though Kruger argued an appointment did not qualify as a “personal illness, injury or medical emergency,” under the act, the arbitrator disagreed.
“This is not a case where (Portelli) was attending his family physician to, for example, renew a medical prescription. Rather, the appointment was with a specialist to inquire into a medical concern (Portelli) had regarding his ankle… The mere fact of the involvement of a specialist itself suggests some further objective verification of the possible existence of a medical pathology warranting inquiry. An appointment with a medical specialist to inquire into such a pathology is one that addresses personal illness or injury,” said the arbitrator.
