Owning liquor store while working, not necessarily other employment: Arbitrator
A forklift driver on sick leave was allegedly directing construction at a liquor store he owned, instead of being at work.
Paul Gill worked at Apel Extrusions in Calgary for 10 years before being fired.
Apel contended Gill took too many days off, which was in contravention of the collective agreement.
Mike Flynn, company president, testified that Gill’s absences were becoming a concern. “He seemed to be working hard at not being at Apel.”
But he was approved for 15 days’ time off May 1, 2015, due to stress from the job and, specifically, his direct supervisor Charlie Dhaliwal. Gill said he was repeatedly singled out for discipline by Dhaliwal.
On May 4, Dhaliwal and human resources manager Cheryle Adolph went to the liquor store construction site to see if Gill was working while on leave. They said they spoke to workers on site, who said Gill would return later that day.
But Gill said he may have stopped by the site on the day, but he was not working there. He testified the store was still in a pre-opening stage and he had no skills in construction or design, so it would be counter-productive for him to attend.
Gill’s ownership of the store was not a secret to the company: Dhaliwal had known about it for months, and many workers in the shop also were aware of it.
On May 6, 2015, the employer accused him of conducting business at another site, contrary to the collective agreement.
“Given you were working at your second place of business while on medical leave, we are hereby terminating your employment for breach of trust and contravention of article 13.04. This is effective immediately,” said the termination letter.
Article 13.04 stated: “If an employee, while on leave of absence, accepts, undertakes or enters into on a temporary or permanent basis, other employment, business venture or calling, without the written permission of the company, he shall be deemed to have ceased employment with the company.”
The union argued the company rejected progressive discipline for multiple absences and jumped directly to termination once it seized upon the liquor store construction as just cause.
Arbitrator Alan Beattie rejected the company’s argument that Gill worked at another place of business, effectively severing his relationship.
“It was well-known by the company that the grievor was in the process of establishing a liquor store and any reasonable person would expect him to drop in occasionally to see the progress of construction. He did that in off-hours when he was employed by the company and there was nothing to prevent him from doing so when he was on the medical leave of absence.”
As well, the arbitrator slammed the company for not addressing perceived absenteeism.
“It is incomprehensible how the company could, on a knee-jerk reaction, fire a 10-year employee with no disciplinary record without engaging in any discussion with him,” said Beattie. “If they had a concern about absences, (it should have) arranged for a first counseling session. It is also incomprehensible, and inexplicable, how the grievance process seems to have been totally ineffective, not even involving the grievor. The whole situation has been a classic example of labour relations gone amok.”
Gills was ordered reinstated with no loss of pay or seniority.
Reference: Teck Highland Valley Copper and United Steelworkers, Local 7619. Corinn Bell — arbitrator. Keri Bennett for the employer. Stephanie Drake for the employee. Sept. 7, 2016.
