Ontario company had enough of numerous unsupported absences
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 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. 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 required frequent special care which often required the worker 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.
In October 2014, the worker’s mother developed a kidney problem that caused the worker to stay home with her. 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.
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. 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, her prognosis, and any treatment.
Attendance improved
After the attendance meeting, the worker’s attendance improved dramatically. 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 support her previous absences. She had previously provided some medical certificates referencing back and shoulder pain, as well as “taking care of her mother,” for some absences but she explained she couldn’t afford to pay the $200 cost her physician required to complete the information form. Winners terminated her employment on Nov. 26.
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 was.
On Dec. 22, the Workers United Canada Council 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.
Winners 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 1.5 days. Winners terminated the worker’s employment a second time for breaching her last-chance agreement.
Arbitrator Brian Sheehan found that, given the amount of absences on the worker’s record and the collective agreement, Winners 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.
While the worker did provide medical certificates for some of her absences, the reasons given were “either non-existent or skeletal at best.” And despite Winners granting three extensions, the worker couldn’t provide further information in a timely manner, which also amounted to insubordination, said Sheehan.
Sheehan 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.
It was likely the worker did suffer from legitimate medical issues such as back and shoulder pain, but the medical evidence she provided was “paper thin” and she suddenly was able to work every day without any problems after she was warned her job may be in jeopardy, said the arbitrator.
Sheehan 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.
However, Sheehan 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 directly challenging the absences in the years before then.
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 Sheehan.
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.
For more information see:
• Winners Merchants Intl. LP and Workers United Canada Council (Ali), Re, 2016 CarswellOnt 16376 (Ont. Arb.).
