Requirement for notification before next shift doesn’t mean daily report during extended absence, says arbitrator
A Manitoba employer had reason to be concerned over an employee with attendance issues but it couldn’t use a few days of not calling in over an extended absence as reason to dismiss her when it knew she was ill, an arbitrator has ruled.
Angela Campbell, 42, was a labourer at the Keystone Centre, a multi-purpose complex featuring an arena, show ring, exhibition spaces and meeting rooms in Brandon, Man. She was initially hired on a casual basis starting in November 2015 and became full-time a few weeks later. Her job involved cleaning and setting up for events at the centre, sometimes in the day and sometimes in the evening. She also sometimes worked weekends.
After she was hired, Campbell’s orientation included the calling-in-sick procedure. Employees were instructed to call the engineering staff line if they were unable to come in for a shift. If someone called in sick, the engineering staff were supposed to make a note on a whiteboard that was regularly checked. In addition, the collective agreement had a provision stating that any employee absent due to illness or injury must “inform their supervisor or general manager prior to the commencement of his next scheduled shift or as soon as reasonably possible thereafter.” The interim assistant general manager also gave new employees his cellphone number and posted shift schedules two to three weeks in advance. Campbell and two other labourers each worked every third weekend.
In her first couple of months of employment in late 2015, Campbell only missed one day out of 38 she was scheduled to work. However, she missed 10 days in the first half of 2016 and 44 in the second half of the year. She ultimately missed more than 20 per cent of her 2016 scheduled shifts.
Campbell started off 2017 much better, not missing a day until Feb. 9, when she texted the assistant general manager saying she was ill. She texted the next three days as well, and the assistant general manager texted her back to remind her to call the engineering staff line, since he wasn’t at work the latter two days.
Campbell remained off work until Feb. 17, texting the assistant general manager each day until then, finally saying she was supposed to be receiving results that day and would let him know. On her next scheduled day, Feb. 21, the centre didn’t receive any communication from her and there was nothing on the white board. The assistant general manager said he had “no clue as to how long she might be off.”
Campbell texted on Feb. 22 to say she would be able to come back the next day, but she notified the centre each scheduled day of work through to March 1 that she was “still sick.” There no further messages from Campbell for the next four days and nothing was put on the white board.
Campbell began texting again that she was still sick on March 6 and the next two days, until the assistant general manager asked her when she would be returning to work. Campbell replied that she would be seeing the doctor the next day and would know then, but later texted that more tests were being done and she would know early the next week.
Campbell sent more texts saying she was still sick through March 20, when she said she could return to normal duties on March 27 after she received some test results. However, the results didn’t come in and she texted on March 28 that she would be back two days later.
Campbell came to work on March 30 and gave six doctor’s notes to the assistant general manager. The notes were standard forms, stating Campbell’s name, date of illness, and the fact she had sought health advice and “would have been required to be off work during the time indicated above.” One of the notes was from a doctor who wasn’t Campbell’s regular physician, wasn’t based on a direct examination, and covered the period from March 11 to 29.
The assistant general manager and the facilities manager went through the notes and determined they were insufficient to support Campbell’s absences. The same day, they gave her a termination letter and told her to empty her locker and leave her jacket. The termination letter stated that Campbell had been off for 36 working days in a row and had missed 90 days because of illness in the past 13 months. It also said she failed to call in on a regular basis, only texting the assistant general manager, and because she didn’t notify anyone for absences from March 2 to 5, 2017 — a violation of the collective agreement, which stated employees absent more than three days without notifying the employer were subject to termination — she was being terminated.
The union filed a grievance, arguing the collective agreement’s provision on notifying the supervisor or general manager didn’t require “notice each day” and Campbell effectively gave notice on a continuous basis between Feb. 9 and March 28.
The arbitrator noted that Campbell’s absenteeism and the quality of her doctor’s notes were “the subject of legitimate concern” for the centre, but the crux of its stated reason for termination was the collective agreement’s provision allowing termination for more than three working days without notification.
The arbitrator found that Campbell sent 21 different texts to the assistant general manager on 15 different days between Feb. 9 and March 1, 2017. Though her call-ins to the engineering staff line were more inconsistent and not supported by any evidence, the text messages made it clear to the employer that Campbell was ill, said the arbitrator.
The Keystone Centre interpreted the collective agreement provision requiring employees off sick to “inform their supervisor or general manager prior to the commencement of his next scheduled shift or as soon as reasonably possible thereafter” to mean daily reporting was necessary. However, the arbitrator found there was no specific consequence indicated for a failure to comply, and if an employee was sick for a period of time, a lack of daily reporting didn’t mean the employer didn’t know the employee was still sick, said the arbitrator.
“It is my view that (Campbell) did notify the employer, repeatedly, in accordance with the requirements of (the collective agreement), and that her silence on March 2, 3, 4, and 5, 2017 did not trigger the operation of the article (on informing the supervisor of absences),” said the arbitrator.
The arbitrator also found that the employer didn’t challenge the doctor’s notes at the time Campbell provided them and didn’t allow Campbell the chance to address its concerns. As a result, the notes couldn’t be a factor in the decision to terminate.
The Keystone Centre was ordered to reinstate Campbell with no loss of seniority but with only 65 per cent of the compensation she lost since her termination, in recognition of her poor attendance record — she only worked 64 per cent of her scheduled shifts in the year leading up to her termination. See CUPE, Local 69 and Keystone Agricultural and Recreational Centre, Inc. (Campbell), Re, 2017 CarswellMan 620 (Man. Arb.).
