Terminated by her employer for abuse of sick leave, a worker grieved.
The worker maintained that she had arranged for sick leave and was convalescing according to her doctor’s orders. She accompanied her husband on a last-minute business trip to Chicago during her sick leave only so that he could care for her, the worker said.
An educational assistant with 19 years’ seniority, W.B. also acted as the union’s Chief Steward.
When the local union president attempted on April 26, 2009 to book W.B. for a meeting on May 4, W.B. responded that she was not available. Queried about why she was unavailable, W.B. could give no firm answer.
Early on April 30, W.B. filed a leave of absence request to conduct union business on May 8. Later that day, W.B. saw her doctor and in the evening she e-mailed a scanned medical note to alert the employer that she would be off work from May 1 to May 7 due to a foot injury.
E-mail account accessed remotely
On May 2, W.B. accompanied her husband to the Chicago area where he was negotiating for a franchise opportunity. While W.B. stayed at her sister’s house near Chicago, her husband attended at the franchisor’s headquarters in the city. Records indicated that W.B.’s passwords had been used to remotely access her office intranet/e-mail account from Chicago.
On June 4, W.B. attended a meeting called by the employer to inquire into the nature of her absence. Senior representatives from Human Resources attended the meeting. A union representative accompanied W.B.
At first, W.B. maintained that she was at home the week of May 1 to May 7. Informed by the employer that her intranet account had been accessed from Chicago during that period, she then recalled that she saw a specialist there about her foot. W.B. could provide neither an address nor a surname for the specialist she referred to as “Sheila.” She denied any ulterior motive for being in Chicago.
The following day W.B. e-mailed the director of education. W.B. said she had been told by her doctor to stay off her foot. When her husband was called at the last minute to go to Chicago, she accompanied him because he was concerned that she would be unable to get around and care for herself. She only agreed to go, she said, because her sister lived near Chicago.
Scared for her personal well being
She explained her missteps in the meeting as the result of being intimidated by the employer representative who, she alleged, slammed file folders onto the table with such force that she was scared for her personal well-being.
On June 8, the employer contacted W.B. referencing notes from the meeting and her e-mail to the director. The letter indicated that the employer continued to have serious concerns about the nature of her absence and requested further information about the specialist called “Sheila.”
That information was not supplied and on June 22, W.B. was fired. The letter of termination called W.B.’s medical note into question and alleged that she had obtained it in order to facilitate her trip to Chicago. Sheila was fictitious, the letter alleged. W.B. had been dishonest with the employer and termination was warranted.
The onus was on the employer to establish its case on the balance of probabilities, the Arbitrator said. The employer made its case.
Contrary to what she had said, the digital/e-mail record showed that W.B. was at the franchisor’s headquarters with her husband on May 6, 7 and 8, the Arbitrator said.
There were other aspects too of W.B.’s story that were “inherently improbable” and that strained credulity, the Arbitrator said. The notion that the trip was a last-minute, spur-of-the-moment undertaking simply did not square with all the arrangements that had been made in order to facilitate the trip.
Her apparent attempts to dissemble during the meeting were not the result of being intimidated by a blustering supervisor, the Arbitrator said. No one who was at the meeting could corroborate that allegation.
None of the information the employer requested about “Sheila” was supplied. Moreover, W.B.’s explanation as to why she could not supply the information was “most improbable,” the Arbitrator said. At the very least, W.B. had misrepresented “Sheila’s” involvement.
Serious culpable misconduct
W.B.’s abuse of sick leave constituted “very serious culpable misconduct,” the Arbitrator said. Also, her dishonesty called into question her rehabilitative potential and outweighed the value of her years of service as a mitigating factor.
“[W.B] engaged in very serious misconduct calling into question her trustworthiness, a cornerstone for a continuing employment relationship with the Board. She did not acknowledge any culpability. She did not take responsibility for her actions. She was not contrite or remorseful. Regrettably, the grievor throughout has demonstrated a lack of candour. She misled the Board and its representatives. She misled the Union and its representatives. She also attempted to mislead me, without any apparent compunction.”
There was no reasonable basis to substitute the discharge with another penalty, the Arbitrator said. “The grievor has no basis to place responsibility elsewhere for what has occurred, as she was the author of her own misfortune by her actions, and by her conduct at the hearing.”
The grievance was dismissed.
Reference: The Niagara Catholic District School Board and Canadian Union of Public Employees, Local 1317. Randy L. Levinson — Sole Arbitrator. Daniel Leone for the Employer and Marie Boyd-Robinson for the Union. October 29, 2010. 24 pp.
