The grievor's absenteeism was close to the allowable maximum and he had been cautioned. He was ill and attended a clinic, where he obtained a note. He called in before his shift to say he would not be working. He did not take the note to the employer. He was fired for excessive absenteeism. The arbitrator found the grievor's headache to be an illness and reinstated him.
A part-time usher was fired under the deemed termination provisions in his collective agreement after one absence too many pushed him over the terminal 10 per cent absence threshold. The union grieved.
W.N. was hired as a part-time usher at a large entertainment venue in 1994. W.N. also had a full-time job elsewhere.
The process for scheduling ushers to work events at the venue was set out in the collective agreement. Generally, workers signed up in advance to work particular events; however, depending on staffing needs and demand, ushers were on occasion required to work certain events.
Under the collective agreement, workers could be terminated for consecutive absences exceeding 90 days. Workers could also be terminated if they were absent for more than 10 per cent of their scheduled working days over the course of the year, which was measured from July 1 to June 30. Exceptions were made for absences due to “serious illness.”
On Jan. 19, 2011, W.N. was informed his absence rate was at 7.69 per cent. He was cautioned about the deemed termination provisions in the collective agreement that applied to absences beyond the 10 per cent ratio. He was also informed about the number of events remaining in the season and encouraged to keep an eye on his absences over that period.
Sick with a headache
W.N. awoke with a headache on June 29, 2011. He attended a walk-in clinic and was provided with a doctor’s note to support his intended absence from work that evening. At 4:41 p.m., W.N. called the employer’s hotline to say he would not be in for his scheduled shift that evening.
W.N. never got to present the note. He was fired on July 11, 2011, before his next scheduled shift. The letter of termination marked his absence rate at 10.34 per cent
The union grieved the termination. W.N. was absent due to illness on June 29, 2011, the union said. If that absence was not counted, W.N.’s absence percentage would not have exceeded the terminal threshold.
The union said the employer violated the collective agreement when it terminated W.N. without giving him a fair opportunity to provide the note that explained his absence.
The union also said the termination violated the personal emergency leave provisions to which W.N. was entitled under the Employment Standards Act (ESA).
The employer said the exemptions to the deemed termination provisions in the collective agreement were for absences due to “serious illness.” A headache, the employer said, did not count as a serious illness.
As well, if W.N. was intent on excusing his absence from counting against him by providing a doctor’s note, it was incumbent upon him to provide that note in a timely manner. In this case, W.N. did not provide the note until nearly four months after the absence.
Serious illness
ESA leave entitlements did not apply in this case, the employer said, because the absence in question was an incidental, one-evening absence.
W.N.’s headache did not count as a “serious illness” as contemplated by the collective agreement, the Arbitrator said.
The Arbitrator also disagreed with the union’s contention W.N. was not given a fair opportunity to provide his doctor’s note. “There was nothing preventing the Grievor from providing the note as early as June 29, 2011, or when he was feeling better in the days that followed. Had the Grievor done so, he would not have been terminated.”
However, that delay did not vitiate W.N.’s leave entitlement under the ESA, the Arbitrator said.
“The Employer argued an incidental one evening absence due to illness does not attract entitlement to the personal emergency leave provision in section 50 of the ESA. I disagree. Personal illness is clearly set out as a circumstance that entitles an employee to a leave under this section of the ESA. Nothing in section 50 suggests a personal illness cannot be for an incidental one evening illness. The ESA does not stipulate that the illness need be one that is ‘serious’… As remedial legislation establishing minimum employment standards, an interpretation of the ESA that extends its protections to as many employees as possible is to be preferred over one that does not. The term ‘personal illness’ should not be restricted as argued by the Employer.”
W.N. was ordered reinstated.
