Ontario employer wanted third-party documentation
An Ontario employer did not have just cause to discipline or deny holiday pay to an employee for taking a day off before a holiday to care for a family illness, an arbitrator has ruled.
Jeff Garland was a machine operator hired in 2018 by SAF-Holland Canada, a made-to-order manufacturer of commercial vehicle parts in Woodstock, Ont.
SAF-Holland had issues in the past with employees taking unplanned absences adjacent to vacation days and holidays, so it usually required reasonable evidence supporting unplanned absences such as doctor’s notes or other documents.
The collective agreement contained a provision that said: “An employee who is absent from work on either of the qualifying days [the last scheduled day before a public holiday and the first scheduled day after] will receive holiday pay provided he gives a reason satisfactory to the company for his absence.”
Garland had no attendance issues over his first several months of employment. He booked a vacation day for May 21, 2019, which was the day after the Victoria Day holiday. He and his family planned to go to their cottage on the previous Saturday.
On May 17, Garland called the company’s automated service to say he wouldn’t be coming in for his shift due to family illness. According to Garland, his wife was ill through the night and he needed to stay home to look after her and their young son.
The next day, Garland’s wife was feeling better so they proceeded with their cottage plans. Garland took his scheduled vacation day and returned to work on May 22, providing a note written by his wife stating that she had been ill on May 17 and Garland “needed an emergency leave day to be home for me and our son.”
Garland met with the HR manager, who said the note wasn’t reasonable evidence of his absence as it was written by his wife validating her own illness. He asked if Garland had anything else, to which Garland responded it was all he had.
On May 24, SAF-Holland issued Garland a verbal reprimand. The company didn’t necessarily believe Garland was being untruthful, but it issued the reprimand because he didn’t provide reasonable evidence — a requirement that was important to the company because of the historical issues of suspicious absenteeism. It also did not provide Garland with holiday pay because he didn’t meet the requirement of working his last scheduled day before the holiday.
The union argued Garland’s absence qualified for family responsibility leave under the Ontario Employment Standards Act, 2000, which entitles employees to a leave of absence for an “illness, injury or medical emergency” of a family member, including the employee’s spouse. The act states that the “employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”
SAF-Holland maintained that Garland didn’t provide evidence reasonable in the circumstances to prove he was entitled to family responsibility leave.
The arbitrator noted that although Garland was a short-service employee, he had no history of absenteeism and the reason for his absence was credible and supported by his wife. The company was focused on whether Garland could provide third-party documentation supporting his absence, but since the illness wasn’t serious enough to seek medical attention or medication beyond what was at home, there was no such documentation available, said the arbitrator in finding that there was no reason not to believe Garland or his wife’s note.
The arbitrator determined that the information Garland provided was sufficient to constitute evidence reasonable in the circumstances that entitled him to family responsibility leave. With this entitlement, SAF-Holland didn’t have just cause to discipline Garland or deny him holiday pay.
Reference: SAF-Holland Canada and Unifor, Local 636. Randy Levinson — arbitrator. Brian MacDonald, Darren Avery for employer. Luis Domingues, Scott Smith for union. July 20, 2020. 2020 CarswellOnt 10264
