Worker’s absence a pain in employer’s neck

Worker didn't show up for several days after getting injured in car accident

This instalment of You Make the Call features an employee who was fired for failing to show up for work after a car accident.

Chris Smith had not worked for very long at an Alberta location of the Real Canadian Superstore and was still a probationary employee when he got into a car accident on the way home from work on Dec. 19, 2004. After going to the hospital with a “whiplash type injury,” he went home because he was feeling fine.

The next day, Smith called his supervisor to tell him about the car accident and that he wouldn’t be in to work for a few days while he recovered. The supervisor claimed he told Smith to call him four days later on Dec. 24 to advise him of the situation.

Smith didn’t call and remained absent from work until Dec. 30. The supervisor asked him why he hadn’t called on Dec. 24 and informed him he had been scheduled to work on five days since then, which had been recorded as “no-shows.”

Smith continued to be absent from work as he claimed he was still recovering from his injury. He next called the store on Jan. 4, 2005, and discussed the situation. The next day, Jan. 5, he was fired.

Smith tried to grieve his termination but Real Canadian Superstore said the collective agreement allowed it to discharge new employees at its discretion. The collective agreement stated employees who had worked less than the probationary period could be dismissed “for any reason, whatsoever” and the grievance process wasn’t available to those employees.

However, the union argued the collective agreement provision didn’t necessarily give Real Canadian Superstore a blank slate to fire anybody for any reason. It said a probationary employee should be able to use the grievance process if he can establish a prima facie case the dismissal was related to a prohibited ground of discrimination in Alberta’s human rights legislation. Smith claimed his temporary disability resulting from the injury suffered in the car accident, which was the reason for his absences, was a factor in the store’s decision to fire him.
You Make the Call

Was Smith fired because of his disability and entitled to file a grievance?
Was Real Canadian Superstore entitled to fire him at its discretion without a grievance?

If you said the store was free to fire Smith without a grievance, you’re right. The arbitrator agreed that Smith had a disability and his employer knew or should have known of it. It was also agreed Smith was treated in an adverse way by being fired. Both of these are part of the test for prima facie discrimination. However, the arbitrator did not find the union could prove the disability played a part in the dismissal under the reasonableness standard of review

Both the arbitrator and the Alberta Court of Queen’s bench found there was no evidence Smith’s disability played a role in the decision to fire him.

“I accept it is possible to infer that Smith’s disability was a factor in the dismissal,” the court said. “However, this is not the only reasonable interpretation. The determination that the disability was not a factor in the dismissal is also reasonable.”

Because discrimination based on Smith’s disability was not proved, he was not entitled as a probationary employee to file a grievance and Real Canadian Superstore was entitled to dismiss him. The grievance was dismissed by the arbitrator and upheld by the court.

For more information see:

U.F.C.W., Local 401 v. Real Canadian Superstore, 2008 CarswellAlta 728 (Alta. Q.B.).

To read the full story, login below.

Not a subscriber?

Start your subscription today!