Lack of progressive discipline harmed employer's case
When a seasonal driver missed a single day’s work and he didn’t notify his supervisor, a Jasper, Alta., city employee was terminated with cause.
Richard Hart had worked with the municipality for 17 months as a solid waste driver in the summer and a heavy equipment operator in the winter months, when on Dec. 9, 2015, he failed to show up for his regular shift.
“We have concluded that you were absent from work on Dec. 9 without taking adequate and proper steps to notify your supervisor and to seek approval to be away on a scheduled day of work. We also found your purported explanation for failing to report your absence to be less than candid and forthright,” said a termination letter given to Hart on Dec. 16.
On the morning of Dec. 9, Hart didn’t arrive at work as usual and Gordon Hutton, municipal buildings and assets manager, became concerned about his well-being.
Hart fell off a truck on Nov. 23 and injured his ribcage. He had taken a few days off since the injury and was treated by his doctor. Each time he couldn’t work, Hart informed a supervisor by cellphone.
However, Hart also dropped his phone in the snow so it was lost for a few days. Eventually, it was returned to him. At the time, Hart said he had ongoing issues with the phone and he could not answer calls, even though he could see who was calling.
On the evening of Dec. 8, Hart said he had a flare-up of pancreatitis and needed to recover at home the next day. He testified he sent a text message on his wonky phone, but Hutton said he never received a text from Hart.
Hutton went by Hart’s home in the afternoon, but didn’t hear from him after knocking on his door.
During that day, Hart said he went to the doctor and he was prescribed painkillers which he said made him lose track of the day, and his memory of it remained hazy.
He was able to contact Hutton on Dec. 10, but didn’t show up at work until Dec. 11. He was suspended pending an investigation about his Dec. 9 no-show.
After he was terminated, the Canadian Union of Public Employees (CUPE), Local 1458, grieved the termination on Jan. 6, 2016, and argued the firing was excessive considering only one previous discipline letter had been issued to Hart for a September incident. Hart had appeared for his regular shift that morning, but was ordered to go home after he admitted he was still intoxicated from the night before.
The union said that because Hart had been addicted to painkillers and alcohol and he was undergoing treatment, the firing contravened the human rights code because of his disability.
The employer countered and said because Hart had received two coaching letters for previous incidents, the dismissal was justified.
Arbitrator Andrew Sims — chairing a board of arbitration with two other members — ordered the municipality to reinstate Hart immediately.
“While we understand the employer’s frustration after Dec. 9, the basic fact remains that Hart’s offence was missing a day’s work, failing to phone in appropriately, and failure to give a clear account of why that happened. He had nothing but a written warning on his record. We agree with the union’s assertion that this is not a situation where progressive discipline, with its advantages of fairness and warning, should give way to outright termination.”
The municipality should have taken better care in assessing the incident, especially considering Hart’s condition, said Sims.
“There is no doubt that the management team viewed the events of Dec. 9 as a recurrence of the grievor’s drinking issues. That may well have been the case, although the evidence suggests it was probably more complex than that, with heavy prescription drugs or alcohol being taken not just through habit but as a form of inappropriate self-medication due to the pain caused an attack of pancreatitis and the anxiety and panic that precipitated.
“It is a secondary point, but the employer’s knowledge of his medical issues should have led the employer to give some more careful consideration to the likelihood that the absence had at least some connection to his disabilities. It did not do so,” said Sims. “Given the lack of real progressive discipline and these related issues, we find termination to be excessive in the circumstances.”
Reference: Jasper (Municipality) and Canadian Union of Public Employees, Local 1458. Andrew Sims — arbitrator. Craig Neuman for the employer. Robert Szollosy for the employee. Sept. 7, 2017.
