The grievor had been on short-term disability and was scheduled to return to work. Supervisors were unable to contact him by phone and he did not pick up registered letters sent to him. He was fired for insubordination.
A worker was fired after he failed to return to work following a period of short-term disability and then ignored his employer’s requests for information about his condition.
A.A. worked as a Service Agent at an airport-based car rental company. Hired in 1997, A.A. worked in the garage inspecting, cleaning and otherwise preparing the vehicles for rental. There was no discipline on his record when he was fired on Oct. 29, 2010.
A.A. reported feeling ill on Aug. 7, 2010. On Aug. 11, he provided the employer with a note from his doctor stating he wanted three weeks off. On Aug. 20, the doctor supplied a note to the employer’s third-party insurance provider. The note stated A.A. was suffering from pancreatitis and was unable to work. Based on that note, the insurer granted A.A. short-term disability (S.T.D.) benefits until Sept. 1.
A.A.’s benefits ended on Sept. 1, but A.A. did not return to work.
AWOL
However, because of a communications lag between the employer, the employer’s third-party Human Resources administrator and the insurance carrier, it was not discovered that A.A. was AWOL until Oct. 5, when one of A.A.’s manager’s sought an update on his condition.
Another manager phoned A.A. that day and a left voicemail. A.A. was told to phone in and explain his circumstances and provide another note if he was seeking to extend his disability. The manager left his cell phone number with A.A. and the instruction to call in as soon as possible. A similar message was left on Oct. 12.
Instead of returning the call to the manager’s cell phone as directed, A.A. phoned the garage line at 11:45 p.m. on Oct. 6, after regular hours and when no managers were on duty. Beyond identifying himself and stating he was still ill, A.A. provided no information. A.A. responded to the second voicemail by again calling the garage shortly after midnight on Oct. 14.
The employer sent A.A. a registered letter on Oct. 13. The letter asked A.A. to phone in to discuss his return to work and informed him that if he did not return to work by Oct. 18, he would be fired.
By Oct. 29, A.A. had neither phoned nor picked up the registered letter.
Another registered letter was sent. A.A. was fired.
By coincidence, A.A. retrieved the first registered letter on the same day. He responded by calling his supervisor’s direct line three times over the next two days.
A.A. was referred to the third-party administrator and then to the insurance carrier. A.A. failed to re-establish his S.T.D. claim.
The insurer ruled that the evidence supplied, including notes from a consultation with a specialist in October, did not support A.A.’s claim for disability beyond Sept. 1.
The union grieved the termination.
The employer said the termination was warranted. A.A. was absent without leave, he failed to comply with the employer’s requests that he communicate and he failed to supply requested medical information. A.A.’s conduct amounted to gross insubordination, the employer said.
The Arbitrator agreed. Having served on the union’s negotiating committee, A.A. was familiar with the collective agreement and was aware of his obligation to communicate with the employer regarding any absences, the Arbitrator said. A.A. was also familiar with the Work Rules in the collective agreement and of the potential for immediate termination under those provisions for insubordination and for being absent without leave.
No credible explanations
The Arbitrator rejected the union’s assertion A.A. did not have access to his manager’s cell phone number and his calls to the garage satisfied his obligation to communicate with the employer.
A.A. had no credible answer to explain his late night calls to the garage. This was an intentional dodge to avoid talking directly to anyone at the employer’s office, the Arbitrator said.
Similarly, A.A. had no reasonable explanation for why he waited for two weeks before claiming a registered letter that had been sent to him.
“[T]he Grievor’s intentional and deliberate course of conduct, in the manner in which he chose to not return [the manager’s] phone calls, and his failure to comply with [the manager’s] instructions to provide information and a doctor’s note… amounts to a pattern of repeated insubordination…”
Termination was not disproportionate or excessive in the circumstances, the Arbitrator said. It was true there was no discipline on A.A.’s record to provide a foundational step for termination according to a regime of progressive discipline. In this case, that didn’t matter, the Arbitrator said.
“The purpose of progressive discipline is to alert the employee that further misconduct will result in further discipline, up to and including discharge. The Grievor was already very much aware of the importance of properly communicating with the Employer, and that failure to do so could result in his termination.”
The purpose of progressive discipline had been fulfilled, the Arbitrator said.
The grievance was dismissed.
