The grievor was on medical leave and did not either show up for work or provide medical notes for his absence. He was terminated. The arbitrator reinstated him, finding that the provision was discriminatory against the grievor, who suffered from a mental illness.
A worker was fired under the “deemed quit” provisions of his collective agreement after he failed to show up at work for two weeks.
C.M. worked at a plant that manufactured aircraft parts. He had about 15 years’ service with the employer when he was fired on Sept. 8, 2011.
Prior to the summer of 2011, C.M. was often late for work and frequently absent. He had been counselled and disciplined for attendance issues. C.M. was warned about the importance of attending work on time and of the need to notify the employer if he was going to be absent.
C.M.’s physical and mental health deteriorated following a difficult marital breakup in 2009. C.M. developed a substance abuse problem and a thyroid condition. He had a breakdown in 2010 and was hospitalized over April and May of that year. C.M was off work for about four months.
C.M. was initially happy to return to work following his hospitalization, however he soon began to feel that the employer did not want him back.
C.M.’s domestic life was also diminished. C.M. had moved back in with his parents following his hospitalization and he found living with his father to be difficult. C.M. was missing his two daughters, his thyroid was “out of whack” and he was beginning to have difficulties at work.
Succumbed to depression
C.M. began to succumb to depression in the spring of 2011. C.M.’s doctor’s records confirmed the progress of C.M.’s illness from initial recovery following hospitalization to a “major depressive disorder with poor sleep” by August 2011. C.M. said that he felt lost and depressed during that period. The doctor said C.M. was “non-compliant with advice,” and that he “lacked insight into his own condition” and that he was not “competent to care for himself.”
C.M. stopped going to work. His last day at work was June 28, 2011.
Initially, C.M. called in regularly — every day or so — to update the employer about his status. Then as he became more depressed and ashamed, C.M. began to call in and leave messages when he knew his supervisors would not be present.
On Aug. 17, 2011, C.M. called in to say he would be in the next day. He was a no-show.
On Aug. 30, C.M. called to say he would not be in that day and that his doctor would fax a note to the employer. No note arrived. There was no more communication between C.M. and the employer until Sept. 8, when C.M. was fired.
The employer said that the termination was warranted. C.M. had violated the “deemed quit” provisions in the collective agreement, which applied after an employee was absent from work for three consecutive days without permission.
The collective agreement provided for an exception if the worker could establish that he or she was absent without leave for reasons beyond their control but that was not the case here, the employer said.
C.M. clearly knew about the requirement to call in and had shown himself quite capable of keeping the workplace informed about his status.
The union said that C.M. had a clear and documented history of mental illness. In this case, the deemed quit provisions of the collective agreement were being applied in a discriminatory manner that had an adverse impact on C.M. because of his disability. In fact, the union said, C.M.’s problems with depression and with his thyroid did impede his ability to call in and notify his employer about his status.
Deemed quit provisions discriminate against the disabled
The Arbitrator rejected the union’s assertion that C.M. was prevented from calling in for reasons beyond his control. There was no evidence to suggest that a change in C.M.’s condition over the summer had the effect of making contact with his employer a matter beyond C.M.’s control.
However, the Arbitrator found that C.M. did suffer from a disability under the Ontario Human Rights Code.
The Arbitrator also found that the deemed quit provisions of the collective agreement treated disabled employees more harshly than non-disabled employees and that C.M. had run afoul of the deemed quit provisions because he was disabled.
The Arbitrator noted the difficulty of pointing to specific evidence to establish that deemed quit provisions have the effect of discriminating against disabled workers. Nevertheless, it was a difficulty that the courts seemed prepared to accept, the Arbitrator said.
“Likewise I am prepared to conclude that disabled employees such as those who abuse alcohol and drugs and those with serious mental health issues are more likely to fail to notify the Employer of an absence than those who are not disabled.”
The Arbitrator said that C.M.’s condition did not make calling in beyond his control but his disability was, as a practical matter, the reason why he did not call.
“In summary I conclude that the application of this collective agreement deemed quit provision discriminates against the disabled under the Human Rights Code and that the grievor was discriminated against for reasons related to his disability.”
The grievance was accepted. C.M. was ordered reinstated.
