Paint factory staffer fails to show up over long weekend
The Victoria Day weekend proved to be no holiday for Joshi Tirath, an employee on ABC INOAC Exterior’s paint line.
Tirath, who had worked for the Ontario-based employer for about five years, denied he failed to report to work on the Victoria Day holiday. He argued he was never asked to work an overtime assignment and as proof he pointed to the fact that he hadn’t signed or initialed anything in confirmation of his acceptance of the overtime.
Tirath worked his regularly scheduled shifts before and after the Victoria Day holiday and argued this entitled him to holiday pay as stipulated by the collective agreement. Management, however, maintained Tirath was asked and agreed to work that day. When Tirath failed to report to work on the holiday, he wasn’t paid.
The employer disputed Tirath’s claim employees are required to sign consent to accept overtime assignments. Management testified employees are asked by their team leaders whether or not they want to accept an overtime assignment. Employees who give their verbal consent are marked down on the attendance list as a "yes." The list is then posted on the work station bulletin board.
The employer argued Tirath agreed to the overtime assignment on the holiday weekend and was subsequently marked as a "yes" on the attendance list but failed to show up on the day.
Teamsters Local Union 847 filed a grievance on Tirath’s behalf. The union submitted the employer should have paid Tirath for the holiday because it could not present any evidence showing he was in fact asked and agreed to work that day.
Tirath worked his regularly scheduled shifts before and after the holiday. The union claimed this alone entitled Tirath to the holiday pay by application of the clear language of the collective agreement, which states, "In order to qualify for payment for any of the paid holidays, an employee must work the entire scheduled work day immediately before and his entire scheduled work day following the holiday, unless he has obtained prior permission to be absent."
Having satisfied these stipulations, the union argued, the employer was obliged to pay Tirath for the day even if he had previously agreed to work on the holiday but failed to report for work.
The employer argued that Tirath contradicted his own testimony about signing for confirmation of an overtime assignment, admitting to many examples of working overtime where no signature was provided.
Furthermore, the employer submitted that a subparagraph of the Employment Standards Act was clear that an employer is not required to pay an employee for the holiday where the employee "without reasonable cause, performs none of the work that he or she agreed to perform on the public holiday."
Arbitrator Gordon F. Luborsky found Tirath’s testimony concerning the assignment of overtime duties was not credible. Tirath had no explanation for the discrepancies between his testimony and the written record, Luborsky said, and either deliberately lied or was completely mistaken.
"I can have little confidence in the grievor’s credibility and thus must find that the grievor accepted an overtime assignment scheduled for May 19, 2014, and then failed to report for work without calling the employer in advance to explain his absence," Luborsky said.
Because Tirath failed to report for work without providing any reason, let alone showing the "reasonable cause" as required under the subparagraph of the Employment Standards Act, Luborsky found he was not entitled to receive payment for the Victoria Day holiday.
The grievance was dismissed.
Reference: ABC INOAC Exterior and Teamsters Local Union 847. Gordon F. Luborsky — arbitrator. Allen V. Craig for the employer, Fernanda Santos for the union. Sept. 25, 2014.
