Marital difficulties led a worker to take an impromptu trip to seek advice from his family. Coming in the wake of a poor record of attendance in the recent past, the unapproved absence was enough to overcome his long record of service.
Following a spontaneous flight from marital trouble, a worker was fired because he was absent from work without leave for three consecutive shifts surrounding the Christmas break.
M.H. had worked for 26 years at a secondary meat processing plant when he was fired on January 19, 2011.
The termination letter said that M.H. was terminated because he was absent without leave on December 23 and 24. He was also absent on his next scheduled workdays from January 3–7 following the Christmas shutdown. The letter referenced deemed termination provisions in the collective agreement that were applicable when a worker was absent from work for three consecutive days without permission.
The union grieved.
On November 24, 2010, M.H. received a verbal warning concerning his lateness for work. M.H. was late for 40 of the 45 shifts between September 2 and the date of the warning. He was told that continued acts of tardiness could result in discipline up to and including termination.
M.H. explained that his lateness was due to being kept up late because of confrontations with his wife.
On Friday, December 17, 2010, M.H. called in sick. The Human Resources Manager returned M.H.’s call and requested that he bring medical documentation to support his absence when he reported for work the following Monday.
However, for Monday the employer’s records showed that M.H. was a “no show — no call.”
Lateness and absence issues
M.H. returned to work on December 21, the next day. He had no documentation to support his absences for either day. He was called to a meeting to discuss his lateness and absence issues. He was told that immediate and sustained improvement was required with respect to his punctuality. It was also observed that M.H. had logged 16 absences, 12 of which had occurred either on a Friday or a Tuesday, which gave him a four-day weekend. He was warned that any absences in future would require documentation.
M.H. was a “no show — no call” on December 23 and 24. He did not respond to calls made to him by the Human Resources Manager over the shutdown, nor did he call to leave any messages.
M.H. did not report for work on January 3, 2011, his next scheduled workday. At 2:30 pm — 30 minutes before the end of the shift — M.H. called in and spoke to the Human Resources Manager. He said that he had received her messages but that he was in Florida and would not return until January 7.
Asked directly if he was absent because of an emergency, M.H. said, “not really,” only that he was having family issues. He did not ask for, nor was he granted, leave to be absent from January 4–7.
A fact-finding meeting was convened upon M.H.’s return on January 11. On January 19, M.H. was fired.
The union acknowledged that employees were required to secure permission for absences of three consecutive workdays. The union said that M.H. had explained his circumstances during the January 3 phone call. At the time he was distraught and preoccupied with his domestic situation. He was under the impression that he had permission to be absent. Moreover, the union said that the employer was obliged to warn M.H. that his job was in jeopardy under the deemed termination provisions in the contract.
No call — no show a “no-no”
The termination was warranted. No call — no show is a “no-no,” the employer said, noting that M.H. had attendance issues prior to December 23. He was absent without permission and had made no reasonable effort to communicate with the company. M.H. was in violation of the collective agreement and, accordingly, his seniority was cancelled and his employment terminated.
The Arbitrator upheld the termination. The issue was strictly a matter of interpreting the “deemed termination” provision in the collective agreement.
“An employer has the discretion to waive the application of a deemed termination provision in a particular case. But in the absence of specific collective agreement language which gives an arbitrator the discretion to do so, an arbitrator has no jurisdiction to relieve against the application of a deemed termination provision,” the Arbitrator said.
The Arbitrator was satisfied that M.H. was absent without leave for three consecutive days. There was no evidence to suggest that the employer’s actions were arbitrary, in bad faith or in any way discriminatory.
“I am not without empathy for the grievor. He found himself in a distressing emotional situation which clouded his mind. However, he was not catatonic. He was able to function and exercise some judgment,” the Arbitrator said.
M.H. was capable of making a plan and driving to Florida to see his mother about his troubles and then driving back. He acknowledged receiving the messages from the company but failed to act on them.
“Those were decisions he made, and decisions have consequences,” the Arbitrator said.
The grievance was dismissed.
