Worker misunderstood employer's request to attend job site
After his brother was fired from his job at the same milling plant he worked at, a Calgary worker took four weeks off due to mental stress.
Martinez, who worked at ADM Milling since 2013, was a flour-packing operator when on Feb. 25, 2016, he was advised by Christopher Mallard, packing superintendent, that his brother had just been dismissed and he wanted to let him know right away.
Later that day, at 5:30 p.m., Martinez told Mallard he wasn’t feeling well and he wanted to go home early. Mallard accepted and Martinez left the plant.
The next day, he phoned Mallard before his shift and said he was still unwell and he needed to take the day off due to ongoing stress about his brother’s situation.
Martinez’s brother had addiction issues and he had been arrested three times in four months, and Martinez was worried about his well-being.
On Feb. 29, Martinez was scheduled to be back on shift but he phoned Mallard from a doctor’s office and told him he was advised to take the next two weeks off due to stress.
Mallard asked Martinez if he wanted to come in to talk about it, but Martinez testified he thought Mallard was referring to his brother, instead of his own illness.
On March 3, Mallard again phoned Martinez to inquire about how he was feeling.
Mallard left a voice mail message, but the phone call was not returned by Martinez.
During a March 9 management staffing meeting, no contact had been made with Martinez regarding a possible return to work. It was decided because he had not provided ADM with a good reason he wasn’t back on the job, he would be terminated.
The next day, a letter was sent to his home that said: “On Feb. 26, 2016, you called your supervisor to let him know that you were sick and unable to come to work.
You said that you would be providing a doctor’s note on Feb. 29, 2016, to validate your time off as being sick until approximately March 14, 2016.
Since then, ADM has had no further communication from you and there has not been any medical documentation given to ADM to corroborate your alleged medical issue and time off. Based on your actions, you therefore leave ADM with no option other than to sever our employee/employer relationship.”
Despite a vague promise to come in, Martinez didn’t return to ADM and produce the doctor’s notes until March 15 when he faxed two notes that said he would be back to work on March 28.
The union, United Food and Commercial Workers, Local 401, grieved the decision and asked the company to reverse the termination and award Martinez $30,000 in compensation for grief and distress.
Arbitrator Andrew Sims allowed the grievance and ordered to company to hire back Martinez, but he disallowed the $30,000 request.
“At best, the grievor misunderstood the invitation to come in and talk. Certainly Mallard maintained throughout that he expected Martinez to come in, but the firmness of that expectation appears to have grown as time passed,” said Sims.
"I do not find convincing the implication in Mallard’s evidence that suggests Martinez was deliberately avoiding keeping the employer abreast of what was going on,” said Sims.
The contention that Martinez was ordered to attend the office and provide a note was dismissed.
“I find no sufficient evidence that Martinez was ever told to bring in a medical note and find the contrary to be the more probable. While Martinez had been invited to come in for a talk at the outset on Feb. 29, nothing turned this into an order or an obligation,” said Sims.
“I accept as genuine Martinez’s understanding that the invitation ‘to come in and talk about it’ referred to his brother’s firing and not to his own absence ” said Sims.
Reference: ADM Milling and United Food and Commercial Workers, Local 401. Andrew Sims— arbitrator. William Armstrong for the employer. Katrina Piechotta for the employee. Sept. 5, 2017.
