The grievor was sick and informed his supervisor, but left work before he was given permission to do so. The company did not pay him holiday pay for Christmas break. The arbitrator found he was in substantial compliance and awarded the grievor the pay.
A worker was issued a warning letter and disqualified for “floater” and statutory holiday pay after he left work early during his last shift before the Christmas shutdown. The union grieved both the warning letter and the loss of pay.
B.L. had about 20 years’ service working at a manufacturing plant. He worked four 10-hour shifts per week.
On Dec. 22, 2010 — four hours into his last shift before the Christmas shutdown — B.L. reported to his supervisor he was feeling ill and was going home.
The supervisor acknowledged B.L.’s request. The supervisor then asked B.L. to wait for permission until production needs could be assessed.
When the supervisor went to find B.L. about 10 minutes later, he discovered that B.L. had already punched out and left the property.
B.L. was issued a warning memo when he returned to work on Jan. 4, 2011. The memo cited B.L. for violating plant safety rule #4, which specified that employees must have express permission from a supervisor before leaving the plant during working hours.
B.L. was also informed that he would not be paid for the six floating and statutory holidays between Christmas and New Year’s Day. The employer said B.L. did not qualify under the terms of the collective agreement because he did not work the shifts immediately before and after the holiday as required.
The union grieved.
Substantial compliance
The union said B.L. did not need permission to go home sick and that, even if he did, the employer was not questioning the honesty of B.L.’s claim of sickness. B.L. did qualify for the holiday pay under the terms of the collective agreement, the union said. B.L. may have left early, but he did work some of the shift on Dec. 22. The contract did not specify the need to work the full shift in order to qualify. By working four hours of his shift, B.L. met the standard of “substantial compliance” established by the caselaw, the union said.
Even if it was determined B.L. left without permission, the employer’s response was problematic, the union said. An appropriate disciplinary response in the circumstances should not affect B.L.’s entitlement to holiday pay, which is an earned benefit, the union said.
The employer said B.L. left without permission. Also, he did not establish a “verified personal illness” as required by the collective agreement in order to qualify for an exception to the terms that disqualify workers from holiday pay entitlement.
The employer said the loss of pay was in no way disciplinary. Rather, it was simply a function of the operation of the collective agreement.
Discipline warranted
B.L. left work without permission. Discipline was warranted, the Arbitrator said. The requirement to get permission before leaving the site was related to safety considerations and was a reasonable requirement.
The expectation that permission should not be unreasonably withheld called into question the appropriateness of the supervisor’s direction to B.L. that he should wait until his claims of illness were tested against production needs, the Arbitrator said. Nevertheless, B.L. knew he had been ordered to wait for permission and he ignored that order.
The employer had cause to discipline B.L. for leaving work without permission, the Arbitrator said. However, it was not appropriate for the employer to disqualify B.L.’s holiday pay entitlement.
The Arbitrator agreed with the union that the appropriate test was whether or not B.L. had demonstrated “substantial compliance” with the holiday pay qualification requirements in the collective agreement. He had.
Disproportionately punitive
“I… conclude that [B.L.] met the test of substantial compliance on December 22. He came to work on the day preceding the holiday. Before he reported his illness, he worked four hours, a substantial portion of his 10-hour shift. There is no evidence that his aim was to lengthen the holiday period.”
The Arbitrator also agreed with the union’s assertion that there was likely a punitive element to the employer’s decision to disqualify B.L.’s holiday pay entitlement.
“While the company asserts that losing holiday pay is simply an unfortunate result of the operation of the collective agreement, its insistence that the loss of six days’ pay is the necessary result of his leaving without permission carries more than a hint of penalization. [B.L.’s] loss of half his annual holiday pay (six out of 12 annual holidays, including floaters) seems disproportionally punitive in the circumstances.”
The company claimed it had no control over the operation of the agreement in the circumstances. The Arbitrator disagreed.
“[The company] has discretion to assess the circumstances, and here the circumstances do not suggest, nor does the company assert, that [B.L.] was attempting to stretch the holiday. It is important to note here the distinction made in many of the cases cited above between conduct warranting discipline and entitlement of employees to the earned benefit of holiday pay.”
The employer was ordered to restore B.L.’s holiday pay.
