Misunderstanding over sick time leads to firing

Manager and employee crossed signals regarding employee's return date

An Ontario company must reinstate an employee it fired for being absent from work without explanation because it should have assumed he was sick, the Ontario Arbitration Board has ruled.

The employee had a history of attendance problems for which he had been disciplined after becoming a full-time painter at Active Exhaust, a manufacturer of exhaust systems for engines based in Toronto. Active’s collective agreement stipulated an employee could be terminated for being absent from work for more than three working days without a satisfactory explanation. The impetus for this clause was there were many positions, including that of painter, that were important to the continuous operation of the assembly line. If someone was late or absent without giving Active the opportunity to find a replacement, productivity would suffer.

The employee was absent from work on Feb. 18, 2009, and didn’t call in. He called his manager the next day, saying he was sick and would be back to work the next Monday with a doctor’s note. The manager took this to mean Monday, Feb. 23, but the employee actually meant the following Monday. When the employee didn’t show on Feb. 23, the manager tried calling him but was unable to contact him.

The employee didn’t call in the rest of the week because he thought it was clear he was still off sick. However, Active management discussed termination. The company decided to send him a termination letter on Feb. 26, explaining he was being let go for his unexplained absences from Feb. 23 to 26, 2009.

When he received the termination letter, the employee came to the office and explained he meant his absence would be until March 2 and provided a doctor’s note covering up to the end of February. Active didn’t accept the explanation because the employee hadn’t called in that week to explain his absences and it was entitled under the collective agreement to terminate his employment for that reason.

Though the employee was absent for seven straight working days and only called in once on Feb. 19, the board found he had explained his absence was due to illness and Active didn’t expect him back until Feb. 23. This made it evident daily notice was not required, as long as there was “satisfactory notice.” The problem was a misunderstanding of what day the employee planned to return to work.

The board found once the confusion was cleared up on Feb. 26 with the doctor’s note, it should have been obvious the employee was absent from the same illness as the first week. The employee immediately showed up after receiving the termination letter so he could explain, but Active didn’t give him the opportunity, said the board.

“Bona fide illness is an objectively satisfactory explanation for an absence from work which an employer is not entitled to reject when considering whether to apply a deemed termination clause (in the collective agreement),” said the board.

Active was ordered to reinstate the employee with compensation for lost wages and benefits. See Active Exhaust Corp. v. C.E.P., Local 591-G, 2009 CarswellOnt 5934 (Ont. Arb. Bd.).

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