When he was unable to book vacation to attend an out-of-town wedding, the employee was told to either work the shifts or look for a co-worker to cover for him. He did neither. His claim that the supervisor’s instructions were merely a suggestion didn’t convince the arbitrator.
Ignoring a clear direction from his supervisor that he must either attend work or arrange for someone to cover his shift, a mill worker was fired after he took time off to attend a wedding.
Hired in 2004, M.K. worked as a Cooling Bed Inspector in the Hot Mill department at the company’s tube and pipe manufacturing plant.
Twelve-person shifts maintained 24-hour production on the Hot Mill line seven days per week. Unscheduled absences caused disruptions to production.
Made aware in February 2010 that he was to be in the wedding party for nuptials to be held on October 16, M.K. nevertheless waited until early October to request time off.
A senior employee had booked that block of time for holiday. M.K.’s request was denied. M.K. was then advised to speak to the Hot Mill co-ordinator. M.K. explained his problem and was encouraged to make arrangements to trade shifts with another employee. M.K. was told that the shift needed to be covered and that it was his responsibility to make such arrangements. M.K. was advised that he must either make arrangements for such a trade or work his scheduled shifts.
Failed to report for work
M.K. was a no-show. He failed to report for work on Thursday, October 14. He did not show up the next day or on the following Monday. He was also away on October 19. When he showed up for his night shift on October 21, he was sent home and directed to attend a meeting the next day.
On October 22, M.K. was fired. The termination letter put together the denial of his request for leave and his subsequent absences from work and asserted that his actions amounted to insubordination. Beyond that, the company said that his record demonstrated an unwillingness to attend work regularly or heed warnings about the need to comply with company policies on attendance.
The union grieved. The union did not dispute that M.K. had attended a wedding when he was scheduled to work. However, the union said that M.K. had misunderstood the Mill co-ordinator’s instructions.
The union said that the employer was aware that M.K. was dealing with depression because of his past troubles with absenteeism. M.K. was under the impression that the co-ordinator understood that he needed time off work to deal with stress and coping issues. However, there was nothing in M.K.’s medical condition to prevent him from travelling to Georgia, US to attend a wedding, the union said. Termination in this case was discriminatory.
M.K. was insubordinate, the employer said. M.K. disobeyed a clear directive from a supervisor in a deliberate and premeditated manner. There was no evidence to support M.K.’s claim of a tacit understanding about his need for time off that obviated his need to either attend work or report his absences.
There was no case for discriminatory treatment either, the employer said. There was no evidence of any connection between M.K.’s claimed disability and his insubordination and failure to follow the employer’s attendance reporting policies.
The Arbitrator agreed.
Conduct that cannot be justified
“I find the grievor’s evidence to be self-serving, inherently improbable, and inconsistent with the probabilities of the surrounding circumstances at the time and the evidence of other witnesses. It is a contrived excuse for conduct that cannot be justified.”
The Arbitrator accepted that M.K.’s conversation with the co-ordinator may have referenced M.K.’s issues with stress, sleeping problems and occasional depression. However, the Arbitrator accepted that the meeting was not about M.K.’s medical condition, but rather about his need to take time off to attend a wedding.
The Arbitrator accepted, too, that M.K. was warned that there would be consequences if he was absent from work without permission.
On the other hand, M.K.’s assertion that the co-ordinator accepted that M.K. was going to be away and gave him the impression that finding someone to cover his shift was optional was simply not credible.
If there was such an understanding, the co-ordinator would have informed M.K.’s supervisor to arrange for someone to cover the shift if necessary in order to avoid production slow downs. That did not happen.
“The fact that [M.K.] did nothing after his meeting with [the co-ordinator] is consistent with the conclusion that his excuse is self-serving and contrived. He knew he did not have permission to be absent from work on his scheduled work days and deliberately chose to go to the wedding …”
M.K. disobeyed his co-ordinator’s directive.
No medical evidence tendered
“There is no evidence of a lawful excuse for not reporting for work. Whatever his medical problems may have been at the time, he did not seek medical attention and obviously they did not prevent him from attending the wedding. No medical evidence was tendered to explain his medical condition at the time or how he was well enough to attend a wedding but not work.”
There was just cause to discipline M.K. for insubordination and termination was appropriate.
There was no evidence to support the charge of discriminatory treatment, the Arbitrator said. Even if M.K. had a disability within the meaning of the Ontario Human Rights Code, there was no evidence to show that his disability at all factored into his termination.
“The grievor’s complaints of discrimination and harassment appear intended to simply cloud or deflect attention away from his conduct in this case. They have no merit.”
Given his relatively short service and poor prospects for rehabilitation, the Arbitrator was unable to find sufficient mitigating factors to alter the penalty.
The grievance was dismissed.
Reference: Algoma Tubes Inc. and United Steelworkers, Local 9548. George S. Monteith — Sole Arbitrator. Gordon P. Acton for the Employer and David Pettalia for the Union. May 13, 2011. 14 pp.
