Illness was legitimate; direction to remain at work not clear
Fleeing the workplace after receiving word that she was to be reassigned from her prime position, an usher who worked major league sports events was fired after her employer decided she had abandoned her post.
A part-time usher since 1995 at a large indoor stadium, G.E. mostly worked basketball games. Because her section contained the players’ dressingroom entrance, it was considered one of the more difficult sections to work because of the need to keep fans away from the players while maintaining a friendly and professional demeanour.
Beginning in 2007, G. E. began to get complaints. While the first complaint referenced poor treatment from staff in general, the second complaint singled out G.E.’s conduct in particular and suggested that she was “power tripping.”
A coaching session followed. G.E. was informed that she needed to deal with fans in a polite and non-abrasive manner — even if she thought they were wrong.
About one month later another complaint surfaced. This one alleged that G.E. was rude and confrontational with fans, including children.
In response, management determined that G.E. should be moved to a less demanding section.
Left work early
Informed during the regular pre-game staff meeting that she was to be moved to another section, G.E. responded that she was feeling ill and would likely have to go home early.
Following the general meeting, G.E. was called to another meeting. In attendance were two supervisors and a union representative. G.E. was told that because of the complaints, the employer had decided to move her to a different section.
When G.E. again said that she was going home, her supervisor cautioned her that it would be unwise for her to leave and that there would be repercussions if she left. Nevertheless, G.E. filled out a “variance” form as required when an employee leaves early, and left. The form listed “stress” as the reason for leaving early.
Scheduled to work a game the next evening, G.E. went to her doctor during the day. While the doctor did not examine her, G.E. was observed to be stressed and tearful. The doctor provided a note saying that G.E. should be off work for two weeks.
While delivering the note before the start of her next shift, G.E. was called in to see her supervisor. G.E. was fired for abandoning her job.
The union grieved.
G.E. had faked an illness and left the workplace against orders, the employer said. She had responded to her reassignment by throwing a tantrum and leaving the workplace. The medical note, such as it was, was obtained after the fact and was not based on a physical exam. Termination was warranted, the employer said.
No evidence she faked illness
G.E. had informed her supervisor that she was ill at the beginning of her shift, the union argued. Moreover, following the second meeting she was visibly stressed and tearful and obviously in no shape to continue working. She filled out the variance form as required and with the assistance of one of her supervisors, the union said. There was no evidence that she had faked any illness and, therefore, no discipline was warranted.
The Arbitrator agreed.
“If the evidence established that the grievor was acting or faking her illness, I would accept that discipline in this case would be justified. However, in light of the preponderance of evidence from all the other witnesses I do accept that [G.E] became very upset at the meeting and clearly stated that she could no longer work because of stress.”
It was true that G.E. did not see her doctor until the next day, but even then her stress was plainly visible. The Arbitrator was not prepared to conclude that G.E. was putting on an act.
The evidence did not establish that G.E. was given a clear and direct order to stay. It was simply not enough to tell G.E. that it would be unwise for her to leave, the Arbitrator said. In addition, G.E. filled out the variance form and was assisted in doing so by a supervisor. It was understandable in the circumstances if she thought she would be permitted to leave.
The employer was entitled to reassign G.E., the Arbitrator said, and it was understandable how G.E.’s reaction could be interpreted as an extreme overreaction. However, the evidence did not support the charge that G.E. had abandoned her job.
The grievance was allowed.
