Employer considered submitted doctors' notes inadequate
After taking more than a month off due to liver ailments, an employee at the Keystone Centre in Brandon, Man., was terminated.
“You have been off sick since Feb. 9, 2017; this adds up to 36 working days off in a row. I have not seen or received a sick note from you. You were also told you need to call into work when your (sic) off sick,” said a March 30 letter handed to Angela Campbell.
Campbell had worked for the events facility since 2015, first as a causal labourer and then she handled cleaning and set-up duties.
Workers were told to phone a number that was staffed 24 hours per day by engineering employees, whenever they were sick.
Campbell was absent on multiple days in 2016 (she booked off 54 days) which added up to more than 20 per cent of her scheduled time, testified the employer.
But on Feb. 9, 2017, Campbell sent a text to “let (Brad) Pilling (interim assistant general manager) know what was going on,” when she felt ill.
She sent two more text messages on Feb. 10 and 11, but on Feb. 12, Pilling advised Campbell to contact the engineering department whenever she was sick.
Campbell continued to book off via text and each time Pilling acknowledged the message, often answering: “Okay.”
Pilling testified that at some point, Campbell “stopped calling in” which caused concern at the centre because workers on duty during weekends didn’t see on a centrally located white board that an employee was away.
Campbell stopped sending text messages to Pilling after March 1, until March 6. Pilling asked her why she didn’t send any messages, and Campbell said she had called into the engineers on those days.
However, no engineers recalled getting any messages from Campbell, said Pilling
Campbell then texted Pilling each morning that she wouldn’t be in to work until March 28, when she texted: “Hey Brad I just back from the docs. Thursday I will be in for work, no restrictions.”
She arrived at Keystone at 7:45 a.m. and gave Pilling six doctor’s notes that explained her no-shows from Feb. 27 to March 29.
Pilling and Don Hall, facilities manager, discussed what to do about Campbell’s continued absences and they decided to dismiss her via a letter prepared by Pilling, who testified the doctor’s notes were not adequate and this influenced the decision to fire Campbell.
The union, Canadian Union of Public Employees, Local 69, grieved the termination on April 13.
The employer argued that under the collective agreement, “Seniority and employment shall terminate when the employee is absent in excess of three working days without notifying the employer unless impossible to do so,” which happened during the March period when no contact came from Campbell.
Arbitrator Robin Kersey upheld the grievance and ordered the employer to reinstate Campbell, and to pay her “to 65 per cent of the amount she would have earned had she been scheduled to work on a full-time basis for the period from March 30, 2017, to the date of reinstatement,” to reflect her attendance rate during 2017.
“However, it is my view that, in considering compensation, I cannot ignore (Campbell’s) attendance record, as it seems unrealistic to expect that, given that record, she would have worked 100 per cent of the scheduled days since March 30, 2017,” said Kersey.
The doctor’s notes were referenced in the termination letter as being inadequate to explain Campbell’s absence, but this cannot be considered in the decision, said the arbitrator.
“The employer did not argue at the hearing of this matter that it was relying on some inadequacy in the doctors’ notes as justifying the termination of Campbell’s employment. Indeed, in light of the failure to challenge the notes at the time they were provided, such an option was not available to counsel for the employer.”
Reference: Canadian Union of Public Employees, Local 69 and Keystone Agricultural and Recreational Centre. Robin Kersey — arbitrator. David Swayze and Stacy Senkbeil for the employer. Kathy McIlroy for the employee. Sept. 4, 2017.
