Company had enough of unsupported absences, but worker showed improvement after warning, despite missing documentation deadline
An Ontario worker who was fired for failing to provide requested medical information to support numerous absences has been given another chance by an arbitrator.
The worker was a forklift/swing reach driver at a Mississauga, Ont., distribution centre for Winners, the retail clothing company. She was hired in 1991.
Starting in 2010, the worker began having trouble with excessive absenteeism, missing 53 days of work that year. The following year her absences increased to 70 days, then 155 days in 2012 and 165 days in 2013.
The worker attributed some of her many absences to a work injury that occurred in 2010, which resulted in ongoing pain in her back and sometimes her shoulder. She said the pain got so intense at times that she was unable to work.
The worker also was a single mother with an elderly mother who lived with her and her two teenage sons. Her mother required frequent special care — such as assistance going up and down stairs and in and out of the bathtub — for which she relied on the worker. There were no other family members in Canada who could assist with her mother’s care, so attending to her mother’s needs often required her to be absent from work.
In October 2013, Winners implemented an attendance management program (AMP). The program started with three informal stages, and if this didn’t improve an employee’s attendance, the employee would be put into a formal attendance process, also with three stages.
In October 2014, the worker’s mother developed a kidney problem that required the worker to stay home with her and the worker paid for her sister to come from Guyana to help out. At this point, she had racked up 114 absences in 2014, which by then had placed her in the third stage of the informal part of the AMP process. These absences included a period from September 2013 to March 2014 when she was essentially absent from work the entire time.
On Oct. 22, Winners sent a letter to the worker outlining the fact she had 171 days of unscheduled absences since Sept. 23, 2013, for which the company had not received medical documentation to support them — the collective agreement stipulated that the employer could demand reasonable proof of illness for absences of three consecutive days or more. At the time, she had not been at work since Sept. 7. The company requested documentation by Nov. 5 so it could assess if it needed to accommodate her. Failure to provide the documentation would result in the worker’s termination. Six days later, the company held a third-stage informal attendance meeting with the worker.
Winners also provided a letter for the worker’s physician that asked for information on the nature of the worker’s condition, any restrictions she had, her prognosis, and any treatment.
Attendance improved but no medical information
After the attendance meeting, the worker’s attendance improved dramatically. Over the next month, she was only absent for two hours and she also worked voluntary overtime on occasion. She later testified this was because her physician had given her cortisone shots and exercises to perform that lessened the pain in her back and shoulder, and her sister was around to help with her mother.
However, the worker failed to provide documents to support her previous absences, though she was given three extensions until Nov. 21. She had previously provided some medical certificates referencing back and shoulder pain, as well as “taking care of her mother,” for some absences — and some with no reason given at all — but she explained she couldn’t afford to pay the $200 fee her physician required to complete the information form. However, Winner’s terminated her employment on Nov. 26.
In the termination letter, Winner’s explained it wasn’t required to accommodate her personal choice of caring for her mother on her own rather than hiring someone to help, and the fact she had been at work every day for the past month showed her injuries had not been affecting her to the point where she needed to be absent as much as she had been before the warning.
On Dec. 22, the union provided the completed letter from the worker’s physician indicating the worker suffered from low back pain but had no specific restrictions. The physician indicated the worker could return to work immediately and her prognosis was “unchanged and uncertain.”
Winner’s agreed to reinstate the worker with a last chance agreement requiring her to maintain an absence rate at or below “the facility two-month average” over four reporting periods. By Aug. 1, 2015, the worker took three sick days, while the facility average was just over one-and-one-half days. Winner’s terminated the worker’s employment a second time for breaching her last chance agreement.
The arbitrator found that, given the amount of absences on the worker’s record and the collective agreement, Winner’s request for medical information was reasonable. Though it didn’t need to know the details, the company was entitled to information on the worker’s current state of health — both for supporting the worker’s ongoing absences and determining if accommodation was necessary. While the worker did provide medical certificates for some of her absences, the reasons given on them were “either non-existent or skeletal at best.” And despite Winner’s granting three extensions, the worker couldn’t provide further information in a timely manner, which also amounted to insubordination, the arbitrator said.
The arbitrator didn’t buy the worker’s excuse that she couldn’t afford the $200 to pay her physician to complete the questionnaire. The evidence showed the worker earned more than $5,000 in November 2015 and paid for her sister to visit from Guyana. In addition, the worker didn’t apply for short-term disability benefits or employment insurance sickness benefits.
It was likely the worker suffered from legitimate medical issues such as back and shoulder pain, which may have caused difficulties in performing her job duties, but the medical evidence she provided was “paper thin” and she suddenly was able to work every day without any problems after her she was warned her job may be jeopardy, said the arbitrator. In addition, when the worker’s physician eventually completed the questionnaire a month after the dismissal, he indicated her prognosis was “unchanged and uncertain” — hardly consistent with the worker’s sudden recovery, which she attributed to cortisone treatment and exercise, the arbitrator found.
The arbitrator also found it was incumbent upon the worker to attempt to arrange alternate care arrangements for her mother, so she could fulfill her obligation to work as scheduled. She failed to do so and was inconsistent in providing information to Winners about her absences related to this.
However, the arbitrator noted that Winners didn’t take action on the worker’s absences until the October 2014 letter, accepting the previous medical notes without question and not challenging directly the absences in the years before then. In addition, the letter to the physician didn’t ask questions related to past absences, only the worker’s current state of health.
Also in the worker’s favour was the fact that she started attending work consistently after the letter and hardly missed any time in the month before her dismissal. This demonstrated a likelihood her attendance would continue to improve going forward, said the arbitrator.
Winners was ordered to reinstate the worker with a one-month suspension replacing her termination on her record — but no compensation for lost wages and benefits, in order to send the message that the worker must attend work as scheduled and because she continued to insist that the $200 cost kept her from providing medical information in a timely manner.
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