Jailed Saskatchewan worker terminated for inability to attend work

A Saskatchewan company had just cause to terminate a worker who was jailed for aggravated assault, an arbitrator has ruled.

The 50-year-old worker was hired by Saskatoon-based fertilizer company Nutrien in 2007 to be a labourer at its Lanigan, Sask., potash mine. He progressed to the position of operator 1 in the mill operations department.

On March 18, 2019, the worker’s wife — from whom he had recently separated — asked him to stay with their 13-year-old twin daughters while she went to work because they were feeling sick. The worker asked one of his daughters for the password to her mother’s laptop computer. He started using the laptop, but it was synchronized with his wife’s cellphone, giving him access to her emails and texts. As a result, he saw messages between his wife and a man she had started dating.

The worker angrily drove to the other man’s office in a nearby town. The man was alone and the worker attacked him from behind with a baseball bat he had brought with him. The worker returned to the family home to be with his daughters, but he was arrested later that day. The other man suffered serious injuries from the assault.

The next day, the worker called his supervisor from custody and described the assault and his situation, saying that he was concerned about his employment. He knew that he would likely get jail time, but he didn’t know how much.

The union requested a leave of absence for the worker under the collective agreement, which stated that Nutrien could grant a personal leave of absence of up to 28 calendar days, which could be extended upon mutual agreement. It instructed the company to consider factors such as operational requirements, whether the request was justifiable, and whether the denial of the leave would cause undue hardship to the employee.

Management met several times to discuss the matter. They considered the disruption from temporarily replacing the worker for an uncertain period of time, concern over the worker’s violent behaviour, the company’s reputation, and reintegrating the worker into the workforce after a serious offence.

On April 11, they decided to terminate the worker’s employment “due to your inability to report for work as scheduled.”

The union filed a grievance claiming that the denial of the leave of absence request was wrongful termination.

The worker pleaded guilty to aggravated assault and assault with a weapon, and he was sentenced to 18 months in jail and two years’ probation. He served five months and then moved to a halfway house in Regina, where he could work during the day but had to return for evenings and weekends. He was fully released on March 22, 2020.

The arbitrator noted that the worker’s conduct occurred off-duty, but it impacted Nutrien because he couldn’t go to work while he was incarcerated. It was also notable that the worker was a long-term employee with no evidence of a disciplinary record.

The arbitrator found that the worker’s absence forced Nutrien to reorganize its workforce due to the vacancy, and the uncertainty of how long it would be made it more difficult than other leaves like parental or disability leaves. In addition, while a quick inquiry would have found that the sentence would likely be less than 18 months, the worker still wouldn’t have been able to return to work for one year.

The arbitrator found that Nutrien reasonably considered the leave request, which was what the collective agreement required. It reasonably and fairly balanced its interest against the worker’s and was entitled to refuse the request. As a result, the worker was unable to work his scheduled shifts and Nutrien had just cause for dismissal, said the arbitrator in dismissing the grievance.