To facilitate their March break vacations to Belize, two brothers employed by the same company misrepresented their circumstances. One fraudulently obtained a medical leave, while the other simply gambled that his absence would go unnoticed. The ruse was discovered and the brothers were fired.
Drivers for the same redi-mix cement company, A.C. had been employed for four seasons, while his brother E.C. had one year less seniority.
Calculating that his lack of seniority and the scarcity of work through the winter months would make booking a March vacation a simple matter, E.C. booked a time-share on a boat in Belize for a week in March. However, anticipating there would be demand for those vacation slots from workers with more seniority, the employer rejected E.C.’s request.
Nevertheless, E.C. booked his flight and called in sick before he left. Upon his return, E.C. obtained a note from his doctor indicating that he was unable to attend work because of illness from March 13 to March 21.
A.C. went to join his brother. He did not notify his employer that he would be absent despite the potential that he could be caught out by the employer’s automated call system. The call system required workers to call in at night to check if they had been either booked for work the next day or booked as a designated stand-by.
Designated on stand-by
It turned out that even though he didn’t get called in, A.C. was designated as a stand-by on Monday, March 16 and Tuesday, March 17. The call system noted that A.C. had not called in.
A.C. was booked to work on Wednesday, March 18 but he was a no-show. As there was no call, the supervisor called A.C. and left a message. Because the message was not returned, A.C. was not booked for work the next day. Following another call and another unreturned message, A.C. was left off the roster for Friday too.
When A.C. called in on March 24 to indicate he was ready for work, he was called in to a meeting the next day. Asked to account for his absences, A.C. said that he was ill. Asked why he did not notify the employer of his illness, A.C. replied that his mother had called in. There was no record of such a call. Asked why he did not return phone messages left by the employer, A.C. replied that his phone was not working properly and that he did not receive any messages.
A.C. was fired the next day. The termination letter said A.C.’s unauthorized, five-day absence without a satisfactory excuse was in violation of the collective agreement.
Suspicious absence
Meanwhile, the employer became suspicious about the circumstances of E.C.’s absence and began to make inquiries. At a subsequent meeting on March 30 with the employer, E.C. was issued a de facto suspension and asked to supply documentation, including cell phone records and credit card receipts to support his story. E.C. resisted.
On May 11, E.C. was fired for absence without leave and absence under false pretences.
The union grieved both terminations.
On A.C.’s behalf, the union argued that a strict interpretation of the collective agreement supported its contention that A.C. was not absent for three days. A.C. was on stand-by and not called in for two of the five days in question, the union said. As he was only scheduled for one of the days in question, A.C. could not be counted absent for days where he was not scheduled.
The Arbitrator disagreed. For the Monday and Tuesday, A.C. “was on call and was required to check his automated voicemail and did not do so.” While it was true that there was no work for him on those days, there was work on the Wednesday when he was a no-show, and work for him on the following two days that he was de-scheduled because of his Wednesday absence.
“[A.C.] had absented himself from work for at least three consecutive days — March 18, 19 and 20, 2009. He did not have authorization or satisfactory excuse for such absence. The Employer was therefore entitled to treat this absence as a deemed resignation …”
E.C.’s case was different, the Arbitrator said. He had fraudulently obtained a leave and, when later called to account by his employer, he dissembled and continued to provide false information.
“Utter disregard”
E.C.’s conduct was “dishonest and showed utter disregard of his obligations to his Employer,” the Arbitrator said.
Nevertheless, the union argued that under the collective agreement, the employer had missed its opportunity to impose discipline on E.C. because it failed to act within five days of becoming aware of his transgressions.
The Arbitrator disagreed. E.C. had been suspended within the five-day limit while the employer conducted its investigations. Beyond that point, delays were attributable to E.C.’s unwillingness to be forthcoming, the Arbitrator said, and it was not unreasonable for the employer to delay a final determination while it waited for E.C. to provide information.
“In these circumstances, that is, where an investigatory suspension was imposed in a timely manner, where the grievor was not forthcoming with information on which a final decision to discipline could be based and where the Employer was unable to confirm its suspicion of misconduct, it cannot be said that the discipline imposed was more than five days after the Employer became aware of the incident giving rise to the discipline.”
The grievances were dismissed.
