Should have accounted for six-hour return trip: Arbitrator
When a cleaner arrived almost four hours late for a shift at an Edmonton clinic, he was terminated.
Maylan Mallare worked for Alberta Health Services at the Kaye Edmonton Clinic since 2013, as an environmental-two employee, and he was responsible for cleaning and maintenance at the health-care facility.
On Sept. 8, 2016, Mallare and his wife drove to Calgary from Edmonton, beginning early in the morning. He was scheduled to work the same day at 3:30 p.m., and Mallare felt he would be on time to begin his shift.
He and his wife travelled to the Calgary Philippine consulate so they could apply for permanent residency.
Mallare’s original passport had been in the trunk of his car, but it was stolen. He was unable to book an online appointment, but Mallare was advised by immigration officials that he could take a chance and show up at the consulate first thing in the morning to receive a replacement passport.
The couple drove to Calgary and they were sixth in line at the office’s opening at 8:30 a.m.
Mallare testified that he experienced problems when the consulate officials advised him that his Philippine birth certificate didn’t show his exact place of birth, but that he could swear an affidavit and the issue would be resolved.
At 11:15 a.m., Mallare phoned his employer and advised them he would be late for his shift. He called again at 12:36 p.m. and left a voice message indicating he would be even later. Finally, at 4:59, he advised the employer that he would begin his shift at 7 p.m. Mallare signed into his shift at 7:20 p.m.
The first two times he called the employer, Mallare only said he had errands to run but he didn’t provide any further details. It was only on the final call that he explained to the working leader for the evening shift exactly why he would be late.
Mallare testified that if the employer had offered him time off for the day, he would have accepted, but no offer was forthcoming. However, David Partridge, manager of environmental services, testified that had Mallare requested time off on his first call, it would have been granted as the employer would have had enough time to schedule a replacement.
After an investigation, Mallare was terminated on Sept. 26. It was the culmination of previous lateness, testified the employer, and therefore justified. Mallare was issued a written warning on Oct. 15, 2015, a one-day suspension on Dec. 7, 2015, a three-day suspension on May 24, 2016, and a five-day suspension on July 6, 2016. All were for previous attendance issues.
The union, Alberta Union of Provincial Employees (AUPE), grieved the decision.
Arbitrator John Moreau, backed by fellow board members Marty Sholtz and Steve Nimchuk, dismissed the grievance.
“There are no mitigating circumstances when weighed against the ongoing inability of (Mallare) to arrive for work on time which indicate that he can be relied on to get back on track and show up for work on time. (Mallare) was given several opportunities to correct his behaviour but unfortunately failed to do so. It would be inappropriate, when all the circumstances are considered, to interfere with the employer’s decision to terminate the grievor in this case,” said Moreau.
And progressive discipline was properly practised by the employer, said the arbitrator.
“(Mallare) was warned time and again of the need to curtail his lateness but did not dedicate himself to doing so. This employer followed its own progressive discipline policy to the letter with warnings that (Mallare’s) job was in jeopardy if he continued to be late ,” said Moreau.
“The six-hour return trip, coupled with the potential for administrative challenges in obtaining his passport, were hurdles that (Mallare) should have accounted for before leaving on his trip,” said Moreau.
Reference: Alberta Health Services and Alberta Union of Provincial Employees. John Moreau — arbitrator. Monica Bokenfohr for the employer. David Lardner, Kathie Milne for the employee. June 26, 2018. 2018 CarswellAlta 1254
