The grievor had not provided adequate doctor’s notes for his absences, as required in his Last Chance Agreement. The arbitrator found that the LCA was now subject to the requirement in progressive discipline to warn the employee prior to discipline.
A worker who was subject to the terms of a Last Chance Agreement (LCA) because of absenteeism problems was fired after the employer said the doctor’s notes he provided failed to meet the standard required by the agreement.
S. was employed by a company that manufactured components for the aerospace industry.
On Sept. 2, 2009, S. was assessed a suspension for “unacceptable attendance.” Though the suspension was waived, the disciplinary record noted previous unacceptable absences dating from 15 months earlier.
Attendance expectations were spelled out for S. He was also informed that absences due to illness would require a doctor’s note that specified the period of absence. S. was told any similar instances of lost time within the next year could result in his termination.
Four months later S. was fired after he failed to provide adequate medical documentation for an absence.
Last Chance Agreement
Eight months later S. was reinstated under the terms of an LCA.
Included in the terms of the LCA was the requirement that S. provide “medical certification acceptable to the company” in the event of any non-compensable absences. Failure to do so would result in termination without recourse to the grievance procedure.
S. provided four medical certificates as required by the LCA. The first note from Feb. 28, 2011 specified the duration of his absence. The second note made no reference to the duration of S.’s absence. The supervisor brought this to S.’s attention when S. handed in his note but made no further comment. The note was then forwarded to human resources as required.
Two more notes were submitted over the next few months. Those notes did not specify the duration of S.’s absences either.
On April 25, 2011, S. was fired for violating his LCA.
The union grieved. Termination was excessive in the circumstances, the union said. S. deserved another chance, particularly in view of the fact the company made no effort to warn S. the notes he had submitted were inadequate. In a case such as this, where submitting inadequate notes would violate his LCA and result in termination, the employer should have warned S., the union said.
Binding settlement
The LCA was a valid and binding settlement that must be respected, the employer said. Only in exceptional circumstances would it be appropriate to substitute a different penalty other than the one agreed to by the parties. The penalty in this case was appropriate and necessary to accomplish the legitimate, work-related purpose connected to S.’s performance of his job.
The Arbitrator agreed. There was no ambiguity about what was required of S. “It is obvious on the basis of the evidence that [S.] had to provide medical certificates acceptable to the employer, namely specifying the duration of his absence due to illness preventing him from performing his job,” the Arbitrator said.
This requirement was related to S.’s job performance. The medical notes were required “to correct ‘a history of attendance issues’ which directly affected production,” the Arbitrator said.
Neither was there anything illegal, unjust or inequitable about the enforcement of the LCA to call the employer’s actions into question.
An LCA is not a disciplinary notice but, rather, a negotiated return-to-work agreement, the Arbitrator said.
The Arbitrator cited Arbitrator Hinnegan in DHL Express and C.A.W. – Canada, Local 4457, 2010:
“[W]hile a last chance agreement does not remove an arbitrator’s jurisdiction to review the subsequent termination and modify the penalty in exceptional circumstances, it does, by its very nature and purpose, essentially eliminate the concept of progressive discipline and the employee’s length of service as possible mitigating factors. Those are both already taken into account by the parties in the reinstatement of a grievor to his employment subject to a last chance agreement.”
There was no requirement for the employer to warn S. about the inadequacy of the medical notes he was providing the Arbitrator said.
“It is apparent that having regard to the nature of Last Chance Agreements, arbitrators have solidified the use of this means for settling difficult work-related situations by giving full effect to the integrity of the said agreement and for excluding the doctrine of progressive discipline in its operation.”
The grievance was dismissed.
Reference: International Association of Machinists and Aerospace Workers Local Lodge 1542 and Arnprior Aerospace Inc. Joseph E. Roach — Sole Arbitrator. J.D. Sharp for the Employer. Bijon Roy for the Union. Nov. 9, 2011. 22 pp.
