Pepsico 'rigorous about protocol for all matters, and that really helped them down the road'
An Ontario arbitrator has upheld the termination of a worker who falsely went on paid pandemic leave and then tried to claim accommodation that he never requested.
It’s a case of a worker who retroactively tried multiple ways to avoid going on a schedule that he didn’t want to work, says Lorenzo Lisi, a partner at Aird & Berlis in Toronto who represented the employer in the case.
“What the case really centered around was [the worker] didn't want to work – he said he didn't want to work a certain shift,” Lisi says. “It was only on the date that he didn't show up for work that he followed the accommodation route and he didn't even have any specifics about that.”
Rotating shifts
Pepsico Foods Canada runs a food production factory in Peterborough, Ont., making breakfast cereals and baking products for the Quaker Oats brand. The factory runs with three shifts a day, seven days a week.
Most employees worked a three-week rotating shift schedule, working one week on day shift followed by one on afternoon shift and one on the night shift.
When the pandemic started, any employee self-reporting symptoms had to call the company’s “time and attendance” line – the line was normally used to report absences not related to illness, but the company changed the process due to the amount of absences from suspected COVID-19 cases.
Pepsico also implemented a pandemic paid leave for employees with reported symptoms who had to self-isolate for 14 days. This leave wasn’t counted towards accumulated sick leave credits.
The worker began his employment with Pepsico in 2006, holding a variety of positions through the years. At one point, he started working the afternoon shift only and wasn’t subject to shift rotation to accommodate his childcare arrangements.
In March 2020, the worker served a 27-day paid suspension. He returned to work on April 7 and management met with him to discuss the processes that had come into effect at the start of the pandemic. He also successfully bid on a new position, HPS operator, for which training began on May 20. Pepsico informed the worker that his accommodation on a steady afternoon shift would end when he began the training because it was possible for him to swap shifts if necessary.
According to the worker, he was able to swap shifts informally in the new position, so he continued to work steady afternoon shifts. However, he received a 30-day unpaid disciplinary suspension in late July, which was reduced after the union filed a grievance.
Read more: A worker’s shift change request was related to pay and not childcare needs.
Pepsico held an expectations meeting when he returned on Aug. 27 and discussed the rotating shift requirement and what he should achieve on the different training shifts. After the meeting, the worker texted his union representative to say that due to his childcare needs, he would be absent on day shifts.
“When he came back to work in late August, they went through an expectations meeting and he didn't raise anything with them about accommodation,” says Lisi. “And the evidence was that he understood that he would have been on rotating shifts.”
The worker was scheduled for a week of day shifts starting Sept. 8, but he didn’t show up or report his absence. The shift supervisor called him, but he didn’t return the call. Shortly after receiving the voicemail, the worker texted the union representative to say that he couldn’t work the day shift because of babysitting duties and he should be accommodated.
Later that day, the worker called the company’s leave claims centre to say he wouldn’t be attending work because of COVID-19. The plant’s HR co-ordinator contacted him by phone and he was placed on paid COVID-19 leave.
Pepsico put the worker under surveillance and learned that he frequently left his home while on paid pandemic leave and he wasn’t quarantining.
On Sept. 15, the worker told Pepsico that he had been tested, but he actually didn’t get tested until two days later.
Terminated on 5 grounds
On Sept. 21, Pepsico terminated the worker’s employment on five grounds – failing to report to work on Sept. 8 and not calling in; failing to return the shift supervisor’s call that same day; failing to self-isolate during his paid pandemic leave; improperly using pandemic leave to avoid working his scheduled shift; and his previous disciplinary record.
The worker grieved the termination and also filed a grievance claiming that Pepsico failed to properly accommodate him when it required him to work shifts other than the afternoon shift.
The arbitrator immediately dismissed the accommodation grievance, finding no evidence that Pepsico’s duty to accommodate was engaged. The worker had opportunities to request accommodation at the meetings, but he didn’t. His texts to his union representative didn’t suffice as there was no formal request made to the company, said the arbitrator.
“When [the worker] didn't come into work that day, he went off for two weeks and never came back into work after that Aug. 27 meeting,” says Lisi. “There really wasn't a valid accommodation request.”
Read more: A British Columbia arbitrator upheld a worker’s firing for taking a suspicious sick leave after a vacation request was denied.
The arbitrator also found that the worker went on paid pandemic leave not because he believed that he had the virus, but because he wanted to avoid working any shift other than the afternoon shift. The worker “emphatically self-expressed” that he wouldn’t work the day shift after the expectations meeting, didn’t return the supervisor’s call when he didn’t show up on his first day shift, and lied about having been tested on Sept. 15, 2020.
This was implementing his “previously stated determination to never work the day shift,” the arbitrator said, noting that the shift cycle would have been back to the worker’s desired afternoon shift at the end of the 14-day quarantine period.
The arbitrator noted that the abuse of sick leave programs is among the most serious form of misconduct involving breach of trust. In this case, it was also the abuse of a program that Pepsico had implemented in good faith to protect employees and reduce the risk of community spread of COVID-19, which required honest self-reporting by employees. This was serious misconduct deserving of termination, the arbitrator said in dismissing the termination grievance.
Takeaways for employers
Pepsico helped its case by consistently keeping records and following up with the worker throughout the process when he went on leave and when it was time to return, giving him the opportunity to request assistance, says Lisi.
“[Pepsico was] rigorous about their protocol for all matters, and I thought that really helped them down the road,” he says. “And they were vigilant – that's really important.”
The case is a good example of what good documentation and consistency can do for an employer, according to Lisi.
“Sometimes, keeping vigilant and just doing your documentation without losing your cool can be really important,” he says. “[Pepsico] took the high road and they were patient, and I think that what they saw was an employee who was trying to do his own thing and trying to retroactively figure out a way to avoid getting in trouble.”
“When you have multiple parties from an employer – the head of HR, the people who were following up and third-party providers – having that documentation where you can show what you did and you can justify it is very important,” says Lisi. “All of those things together allowed us to put together a very compelling case.”
See Unifor Canada, Local 1996 and Pepsico Foods Canada (Quaker Oats Peterborough) (March 25, 2022), M. McFadden – arb.
