The grievor was working under a last chance agreement requiring him to report any absence. He arrived at the plant and was unable to gain entrance. He reported the absence two days later. He was fired. The arbitrator found it was not the validity of his excuse but the failure to inform the company promptly that was at issue.
A worker was fired under the terms of a Last Chance Agreement (LCA) after failing to call in to report an absence. The union grieved, arguing the worker had not violated the LCA.
C.K. worked for a soft drink manufacturer as a warehouse worker in a distribution centre. He had about 15 years’ service when he was fired.
C.K. had attendance problems. In March 2009 he received a written warning cautioning him he was required to notify his supervisor when he was going to be absent.
His attendance issues prompted another written warning five months later.
C.K. was absent without permission on Jan. 13, 2011. Instead of firing him, the employer suspended C.K. for five days and permitted him to come back to work conditionally, under the terms of a Last Chance Agreement.
The agreement said any failure on C.K.’s part to report any absence to his supervisors would be a violation of the agreement. Such a breach would constitute just cause for termination.
C.K. arrived at the warehouse at 7:45 a.m. for his scheduled 8 a.m. shift on Saturday, Dec. 10, 2011.
Waited in his car
When he got out of his car, C.K. discovered the perimeter gate was locked. He did not try the other gate at the facility or make any other effort to get in. Instead, C.K. waited in his car at the gate for 15 to 30 minutes and then went home.
C.K. did not call in on Saturday. However, he did call his supervisor on Monday morning.
C.K. was fired. The termination letter referenced the LCA and reminded C.K. any failure on his part to report his absences to his supervisors would result in immediate termination. The letter said C.K. was absent on Dec. 10 and that he had failed to make any reasonable effort either to resolve the situation or to contact his supervisor.
The employer said there had been a clear breach of the LCA and that termination was warranted. Mitigating factors had no bearing on the termination and it was appropriate for the arbitrator to apply the terms of the agreement as it was written, the employer said.
The union agreed the arbitrator’s jurisdiction in this case was limited by the last chance agreement. However, C.K. did not violate the agreement, the union argued.
The union said C.K. did not act unreasonably in an unexpected situation. He did not call in on Saturday, but he did call in to report his absence on Monday at what he felt was his first reasonable opportunity. C.K. made an effort to comply in what were unusual circumstances. The union argued any such ambiguity should be resolved in C.K.’s favour.
The Arbitrator disagreed.
The reasonableness of C.K.’s absence was not at issue, the Arbitrator said. Nor was it useful to question whether or not he should have tried the other gate. Under the terms of the LCA, C.K. was absent.
However, C.K. was not fired because he was absent from work. He was fired because he did not properly report his absence to his supervisor.
Notification required for absences that will happen
For staffing reasons, the employer is legitimately interested in knowing if an employee will not be coming in to work, the Arbitrator said, not whether an employee failed to show in the past.
“In two written communications… the Employer made it clear to the grievor that he was to report absences that ‘will’ happen, not absences that happened in the past. Notifying the employer of absences in advance, or at least as soon as possible, is the only reasonable interpretation of this last chance agreement.”
Unless C.K. was somehow incapacitated or incapable of notifying his supervisors on Saturday, there was no ambiguity about either the intentions of the parties or the reporting expectations spelled out in the LCA to suggest it would be okay for C.K. to report his Saturday absence on Monday.
“In this case, the grievor made no effort to advise his supervisor, or anyone else, on the Saturday. I find that he breached his obligation in the last chance agreement to notify his supervisor,” the Arbitrator said.
The grievance was dismissed.
