Grievance dismissed due to lack of medical evidence
A customer and sales agent at Air Canada in Winnipeg lost her fight against a suspension pending discharge matter after repeated absences from work.
Referred to only as SA, the grievor had worked for Air Canada on and off since 1998, being laid off and recalled several times. She had also more recently gained employment at another government department, and wished to keep both jobs.
In November of 2013, SA received a recall notice from Air Canada.
She informed management she had booked a cruise for the first two weeks of January and was told it would not be a problem, provided she could arrange shift trades or allot vacation time.
However, on Dec. 29 — the day before her scheduled cruise departure — SA informed Air Canada she could not work due to sick leave, and while she provided a medical note for a three-day leave, she followed up with an email saying the leave was to be extended until Jan. 13.
That also happened to be the day she was scheduled to return from her cruise.
Not surprisingly, the company brought its suspicions to SA. Numerous attempts to obtain her medical records were unsuccessful but, after some more digging on the employer’s part, it was discovered that while the woman had claimed to be too sick to work for Air Canada, she had in fact been working for her other employer.
When pressed on the matter, SA said her condition made her uncomfortable when dealing with the public, whereas her other job did not involve such interactions. As such, Air Canada offered her temporary accommodation upon her return to work.
The employee declined, saying she would return to work pending her doctor’s approval. Again, when pressed for documentation, SA waffled and none was presented.
The issue came to a head in March, when Air Canada ordered a suspension pending discharge.
On SA’s behalf, Unifor Local 2002 filed a grievance. Various stressors in her life — including the passing of her brother in the summer of 2013 and the breakdown of a relationship in December that same year — contributed to her inability to provide medical documentation in a timely manner.
Further, Unifor revealed she did indeed take the cruise but she thought it would combat her depression.
Air Canada, on the other hand, argued SA’s ability to maintain full-time employment elsewhere, even after she was offered temporary accommodation, was indicative of her inconsistency.
"She is clearly focused on her alternative employment and has not fulfilled her basic employment obligations at Air Canada," the company’s counsel argued.
In his decision, arbitrator James Hayes looked first at the credibility of SA and, secondly, at the adequacy of the medical information provided.
On the initial issue, Hayes concluded SA actively misled not only her employer but her union as well, as the fact that she did go on the cruise came out only during the hearing itself.
Further, while it is not always easy to obtain medical information, given the timeline and persistent requests, Hayes said SA had more than enough time to co-operate had she genuinely wished to do so.
Even at the hearing, all of the medical notation alluded to in her arguments could not be presented.
"If there is any possible medical explanation for her prolonged deceit, none was even suggested," his decision read.
"Nor has there been any medical explanation as to how it is that the grievor may work full-time for someone else, but not at all for Air Canada. All we have are the grievor’s assertions, a grievor who, unfortunately, has shown that she lacks credibility."
As such, the grievance was dismissed.
Reference: Air Canada and Unifor Local 2002. James Hayes — arbitrator Kevin Pavelack for the employer, Cheryl
Robinson for the union. June 16, 2014.
