Had left home to help parents recover from ice storm
A seasonal worker at a peat moss factory was terminated from his position after he didn’t respond to repeated requests via phone and registered mail to return to work in the winter.
Leroy Savage worked at Les Tourbières Berger in New Brunswick as a gofer since 2011. His main duties at the plant were to test the soil conditioner as it moved through processing machines.
Savage usually worked from May to December, but on Feb. 1, 2017, Marc-André Thériault, production and quality supervisor at Berger, decided the company needed to activate three machines early for a special two-week production run.
On Feb. 6, Thériault made a phone call to Savage’s home. When no one answered, he left a message on voice mail asking Savage to call back.
Another call was made the next day and Thériault reached Savage’s common-law spouse, Jessie Lynch, with whom he had lived for 11 years.
Thériault asked Lynch to have Savage return his call, but he said he didn’t provide any specifics about why he called because “it is not the employer’s practice to discuss such matters with anybody else but the employee.”
Lynch told Thériault that Savage was in Rosaireville, N.B., to assist his parents, who lost power due to an ice storm. Thériault testified that he didn’t recall hearing any such news that day, only that Savage wasn’t available.
He tried calling the home phone number one last time on Feb. 9, but again was unsuccessful and left a message.
Thériault testified he didn’t call Savage’s cell number because he said the company usually had more luck reaching workers at home.
The next step in the recall process was then initiated as Thériault sent a notice via Canada Post.
The letter indicated that Savage had to respond by Feb. 17, before 4:30 p.m., or he would have been considered to have abandoned his position as per the collective agreement, and terminated.
After multiple attempts at delivery, the letter was still not retrieved.
Savage said he attempted to reach Thériault on Feb. 20, and left a voice mail:
“My mailbox’s in the ditch and I just went out and got the thing from the post office saying that I basically have no job now I guess cause it says that I had to contact you guys by the 17th and Jessie said that you contacted me but nobody left a message.”
He called back again the next day and twice left a message.
Savage tried to explain to Berger that Canada Post’s tracking system showed he first received the letter on Feb. 20. A Feb. 21 termination letter was drawn up.
Arbitrator Michel Doucet upheld the grievance and ordered Savage to be reinstated. “While I accept that the evidence did establish that the grievor was not at home when Thériault called, I fail to see any reasons why he did not leave a clear message on the answering machine and to Lynch as to the purposes of his calls.”
The argument for keeping Savage’s employment private from his common-law partner was dismissed by Doucet.
“I can understand that this could be the case if the employer is uncertain about the relationship that the person it is talking to has with the employee or if it is addressing matters of a very personal nature,” said Doucet.
“However, this is not the case here and I cannot understand why telling Savage’s spouse that it was urgent that they talk to the grievor because they were in the process of a doing a recall would have infringed on any privacy issues.”
Reference: Les Tourbières Berger and United Brotherhood of Carpenters And Joiners, Local 1386. Michel Doucet — arbitrator. Hélène Beaulieu for the employer. David Mombourquette for the employee. May 8, 2017.
