Delayed doctor’s note saves employee from firing

Employee dismissed for going over sick day threshold; provided doctor's note 3 months later

A Maple Leaf Sports and Entertainment (MLSE) employee who was fired for taking too many sick days has been reinstated by an Ontario arbitrator.

Wayne Nichols was a part-time usher for MLSE at its entertainment venues, hired in 1994. He also had a full-time job and worked MLSE events — such as sport games and concerts — by signing up for them. Sometimes employees were required to work certain events and the collective agreement stated that if an employee was absent for more than 10 per cent of his scheduled working days in a year, the employee would be deemed terminated. Absences where an employee provided a doctor’s note would be excluded from this calculation.

On Jan. 19, 2011, midway through the 2010-2011 season, MLSE sent Nichols a letter warning him that his absence percentage was 7.69 per cent and he should be careful not to reach the policy threshold. However, by the end of the season, Nichols’ absences equaled 10.34 per cent of his working days.

On June 29, 2011, Nichols had a headache and visited a doctor. He obtained a note supporting his absence from his usher job that night. He then called in sick an hour before he was to start his shift and planned to provide the doctor’s note to MLSE on his next shift, scheduled for July 15.

However, on July 11, MLSE terminated Nichols’ employment for passing the 10 per cent threshold. He grieved the termination, but was unable to attend the grievance meeting because his father passed away. Another meeting was held on Oct. 12, at which Nichols provided the doctor’s note. MLSE offered to reinstate Nichols under a last chance agreement, but Nichols declined.

The union claimed the June 29 absence should not have been included in the absence percentage calculation because Nichols had a note and he wasn’t given the opportunity to provide it. Without that absence, his percentage would have been under 10 per cent. It also argued the Ontario Employment Standards Act (ESA) allowed for unpaid personal emergency leave for a “personal illness, injury or medical emergency,” if reasonable evidence was provided.

The arbitrator found that the collective agreement enshrined a practice of excusing absences due to illness when a doctor’s note was provided in a timely manner. Though the employer argued providing the note nearly four months later wasn’t timely, the arbitrator found that Nichols would have provided the note on his next shift had he not been terminated. However, the arbitrator also found that Nichols could have provided the note in the days following his absence, rather than waiting for his next shift scheduled two weeks later. He also could have provided it once he became aware of his termination, said the arbitrator.

However, the arbitrator agreed that Nichols was entitled to an unpaid leave of absence under the ESA for a personal illness. Though it wasn’t serious, it was still allowable under the ESA and therefore should not be included in the percentage calculation under the collective agreement, said the arbitrator.

“Personal illness is clearly set out as a circumstance that entitles an employee to a leave under the ESA,” said the arbitrator. “Nothing in (the ESA) suggests a personal illness cannot be for an incidental one evening illness. The ESA does not stipulate that the illness need be one that is ‘serious.’”

MLSE was ordered to reinstate Nichols. However, because he delayed so long in providing the doctor’s note, the arbitrator found Nichols wasn’t entitled to any compensation for missed income in the nine months since his termination. See Maple Leaf Sports & Entertainment Ltd. v. Teamsters, Local 847, 2012 CarswellOnt 4886 (Ont. Arb. Bd.).

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