Unable to abide by his employer’s warning to improve his attendance or face termination, R.W., a 26-year-old worker for a food wholesaler, was fired two weeks after receiving the warning.
Absent from work for eight days, R.W. claimed he was attacked on the way to work and subsequently hospitalized. The union grieved the termination.
Reviewing R.W.’s attendance record, which he characterized as “appalling,” the Arbitrator said, “one can deduce that the Grievor would much rather be somewhere else other than work.”
Noting R.W.’s predilection for one-day absences the arbitrator highlighted strings of absences — and the reasons for those absences — over a few three-month periods in 2008:
• April-July. “Left early sick, sick, left early family emergency, sick, sore throat, sick, left work pink eye, sick, pink eye, 12 days off sick no disability benefits claimed, left early, left early sick, sick, personal wife sick, wife sick, no show, no call, left early sick, sick.”
• July-September. “Fight with girlfriend, left early sick, sick, left early sick, sick, sick, left early sick, sick, left early sick, sick, left early sick, family illness.”
• September-December. “Broken tooth, toothache, left early sick, sick, late and did not come in, absent to hospital, wife in labour, wife sick, left early wife sick, left early sick, left early, sick, sick.”
Seizing upon the good news, the Arbitrator said that R.W.’s attendance record makes it clear that he was free of any chronic condition that would require accommodation. As well, because of his penchant for taking single days off for a variety of different reasons, the Arbitrator said it would be virtually impossible for R.W.’s doctor to give any meaningful appraisal as to whether or not he would be able to attend work regularly in the future.
Grievor never disciplined
This was significant because despite his attendance record, R.W. had never been disciplined for culpable absenteeism under the terms of the employer’s Attendance Program. The employer, said the Arbitrator, “has either decided not to apply progressive discipline as described in the Policy or has recognized that each of the Grievor’s absences were innocent and therefore, blameless.”
Inasmuch as the employer was relying on blameless conduct to justify R.W.’s termination, it fell to the Arbitrator to review his absences and determine whether or not there was any prospect of improvement in the future. Lingering questions about the credibility of R.W.’s testimony concerning his final absence did not change the fact that he was terminated for innocent absenteeism, the Arbitrator said: “Whether or not the Grievor was assaulted by persons he had arranged to meet for some nefarious reason is of no importance in this matter although it was inferred throughout.”
What was significant was that R.W.’s attendance had improved up until his termination in 2009, halving the number of absences in the previous year.
Grievor now “gets it”
Given R.W.’s personal circumstances, his contrition and his assertion that he now “gets it” following the loss of his job, the Arbitrator ruled that R.W. should get another chance: “I find that the Grievor is a young man who up until now has been careless and shown a clear disdain for the Employer’s attendance policy. This particular Grievor has lied to his Employer and no doubt his doctor when reporting on absences and the reasons for the absences … However, I believe that he is worthy of one final chance to prove his worth to his Employer, his Union and his child. For that reason I will substitute the dismissal for a suspension for cause for admitted violations of the Employer’s attendance policy.”
Under the terms of his reinstatement, R.W. was restricted to no more than 12 absences per year for any illness other than those requiring bed rest as ordered by a physician or hospitalization.
