Lying about absences pushes worker out into the night

Employee disappeared for a week without explanation or contact, then lied about it being a family emergency

A combination of unapproved absences and the lies he told about them gave an Ontario grocery store employee’s employer just cause to fire him, the Ontario Arbitration Board has ruled.

Brian Ray, 52, worked on the night crew in the grocery department of a Zehrs Supermarket in Orangeville, Ont. In addition to duties such as stocking, cleaning and training new employees on the night shift, Ray was also the back-up night crew chief. He was responsible for overseeing the operation of the store at night whenever the regular crew chief wasn’t there. Ray worked for Zehrs for three years.

The store’s vacation process was outlined in the collective agreement. Employees normally signed up for vacation time for the year in February and March. By mid-March, the vacation requests were given to Zehrs and vacations were granted according to seniority. For the rest of the year, vacations were approved on a first-come, first-served basis pending staffing needs. Approval was required before an employee took any vacation time.

Ray normally worked four nights a week, Tuesday to Friday, from 9:30 p.m. to 8 a.m. In early August 2009, he left a note on the grocery manager’s computer requesting the first Friday of September and the following week off. However, the regular night crew manager was already going to be off for two weeks and another crew member had been transferred. The grocery manager explained the staff shortage and busy back-to-school time period made it impossible for Ray to take that week off.

After further discussion, the grocery manager said he would try to arrange the schedule so Ray could get some days off around that time. Ray gave him a calendar with the days he wanted marked. The store manager also agreed to look at giving him some days, as long as they didn’t overlap with the regular night crew manager’s absence.

On Friday, Aug. 21, Ray called in sick. On the following Tuesday, his next scheduled shift, Ray’s sister called the store two hours before the start of his shift and said Ray had a family emergency and could possibly miss more than one shift. The acting manager told her Ray needed to contact management the next day to authorize his absence for the rest of the week and tried to find a replacement for that night. Only one other employee was scheduled that night and the collective agreement didn’t allow employees to work alone on the night shift. He was unsuccessful and a daytime employee was asked to fill in.

Ray was absent from work for the next three days and didn’t call in. Attempts to contact him at home were unsuccessful and the store had to scramble because of vacations. With Ray absent, the grocery department was short four full-time employees. Finally, on Aug. 28, the fourth straight missed day, Zehrs sent Ray a letter by registered mail requesting he contact the store or “a decision will be made concerning your employment status.”

Zehrs was finally able to contact Ray on Sept. 1. When asked where he had been, Ray replied he had been at his cottage for the last week. After his shift that night, he was called into a meeting to discuss his absences.

At the meeting, Ray said he was absent because of a personal family matter that required his attention. He acknowledged that when he tried to book his September vacation time, he had been told it couldn’t overlap with the night crew manager’s absence. Management further questioned him on the nature of the family emergency, but Ray refused to elaborate or provide any documentation. When asked about his cottage, Ray said the cottage was his personal family matter.

Zehrs suspended Ray pending further investigation and shortly after, Ray called the manager and asked to meet again. In the second meeting, he told store management he felt guilty and he took the week off to help his mother at the cottage because she wasn’t well. He said he didn’t call the store during the week because he didn’t want the “run-around” that he was needed in the store. The store discovered later Ray’s mother was healthy and didn’t have any health issues.

Zehrs felt Ray was not honest in either meeting and decided to terminate his employment for just cause on Sept. 22, 2009.

The board found that, though Ray eventually said he felt guilty and tried to own up to his actions, he didn’t sufficiently justify his absence nor his reasons for lying about it. Even though he expressed the desire to “come clean” in the second meeting, he still exaggerated his mother’s condition and failed to apologize.

The board ruled Ray’s “lengthy unauthorized absence and the deceit associated with it, both before and after” damaged the employment relationship and provided just cause for dismissal.

For more information see:

Zehrs Markets v. U.F.C.W., Local 1977, 2010 CarswellOnt 6067 (Ont. Arb. Bd.).

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