Employee had ‘no intention of attending work’: Arbitrator
When he wanted to perform as a magician at a London, Ont., exhibition, an Air Canada service director booked off time in June to do so.
The Montreal-based employee, “JL,” had seven years of experience with the airline and wanted to perform at the 2017 London Fringe Theatre Festival in Ontario. He applied and was accepted in the spring of 2017.
JL was set to perform in six shows between June 1 and 10. During the bid process for June shifts, he was able to book off five days, but he was unsuccessful for the final performance on June 10. Instead, JL was assigned to call-in reserve duty for that day.
When he asked the festival organizers if he could not perform June 10, they said unless he performed in all scheduled dates, they would all be cancelled. JL arranged for other colleagues to work for him should be called in.
On June 9, JL woke up in London and felt a sharp pain in his neck. He was able to pull off his performance and later in the day he received notice from the employer to report to Montreal for work at 4 p.m. the following day.
JL felt his discomfort would be lessened by the next day but when he awoke on June 10, he felt “any movement would cause extreme pain.” JL took some painkillers and worried about his fitness for his shift later that day. He eventually booked the day off as sick leave and was later paid for that day.
JL was able to complete his final festival performance that day and he later posted a social media message at 6:31 p.m. that read: “Thank you everyone!!! Great shows!!! Lots of love.”
On June 19, he went to his doctor who gave him a sick note for the June 10 absence. However, on July 20, JL’s employment was terminated.
The union, Air Canada Component of the Canadian Union of Public Employees (CUPE), grieved the decision and argued JL was legitimately injured and this was confirmed by the doctor’s note.
The employer countered and said the multiple efforts made to book off June 10 and the social media posts confirmed JL wouldn’t have shown up for work in any case.
Arbitrator William Kaplan agreed and dismissed the grievance.
“The evidence establishes that (JL) had no intention of attending work on June 10 and that his absence was completely unjustified. In the circumstances of this case, where there has also been a complete lack of candour on (JL’s) part, termination is the appropriate disciplinary response for what can only be described as (JL’s) premediated decision not to attend work if he was called in.”
As well, JL had a 10-day suspension on his record for an unrelated incident, but it included a final warning, which indicated he should have been more judicious in his actions, said Kaplan.
“The purpose of a lengthy disciplinary suspension and a final warning is to bring to an employee’s attention that their job is in jeopardy and that exemplary conduct is required.”
And by not going to the doctor until he did, that also didn’t help JL’s case, said the arbitrator.
“It is also factually significant that (JL) waited days after his return to Montreal to see a doctor to deal with a condition he described as so serious to have incapacitated him from attending at his scheduled work but, as mentioned above, did not preclude his stage performances on June 9 and 10 ,” said Kaplan.
“Considered in the overall, one can only conclude that the grievor never intended to show up for work on June 10, that this misconduct was serious, and that the discipline imposed was justified,” said Kaplan.
Reference: Air Canada and Air Canada Component of the Canadian Union of Public Employees. William Kaplan — arbitrator. Jackie VanDerMeulen for the employer. Adrienne Lei for the employee. Nov. 20, 2018. 2018 CarswellOnt 19737
The Montreal-based employee, “JL,” had seven years of experience with the airline and wanted to perform at the 2017 London Fringe Theatre Festival in Ontario. He applied and was accepted in the spring of 2017.
JL was set to perform in six shows between June 1 and 10. During the bid process for June shifts, he was able to book off five days, but he was unsuccessful for the final performance on June 10. Instead, JL was assigned to call-in reserve duty for that day.
When he asked the festival organizers if he could not perform June 10, they said unless he performed in all scheduled dates, they would all be cancelled. JL arranged for other colleagues to work for him should be called in.
On June 9, JL woke up in London and felt a sharp pain in his neck. He was able to pull off his performance and later in the day he received notice from the employer to report to Montreal for work at 4 p.m. the following day.
JL felt his discomfort would be lessened by the next day but when he awoke on June 10, he felt “any movement would cause extreme pain.” JL took some painkillers and worried about his fitness for his shift later that day. He eventually booked the day off as sick leave and was later paid for that day.
JL was able to complete his final festival performance that day and he later posted a social media message at 6:31 p.m. that read: “Thank you everyone!!! Great shows!!! Lots of love.”
On June 19, he went to his doctor who gave him a sick note for the June 10 absence. However, on July 20, JL’s employment was terminated.
The union, Air Canada Component of the Canadian Union of Public Employees (CUPE), grieved the decision and argued JL was legitimately injured and this was confirmed by the doctor’s note.
The employer countered and said the multiple efforts made to book off June 10 and the social media posts confirmed JL wouldn’t have shown up for work in any case.
Arbitrator William Kaplan agreed and dismissed the grievance.
“The evidence establishes that (JL) had no intention of attending work on June 10 and that his absence was completely unjustified. In the circumstances of this case, where there has also been a complete lack of candour on (JL’s) part, termination is the appropriate disciplinary response for what can only be described as (JL’s) premediated decision not to attend work if he was called in.”
As well, JL had a 10-day suspension on his record for an unrelated incident, but it included a final warning, which indicated he should have been more judicious in his actions, said Kaplan.
“The purpose of a lengthy disciplinary suspension and a final warning is to bring to an employee’s attention that their job is in jeopardy and that exemplary conduct is required.”
And by not going to the doctor until he did, that also didn’t help JL’s case, said the arbitrator.
“It is also factually significant that (JL) waited days after his return to Montreal to see a doctor to deal with a condition he described as so serious to have incapacitated him from attending at his scheduled work but, as mentioned above, did not preclude his stage performances on June 9 and 10 ,” said Kaplan.
“Considered in the overall, one can only conclude that the grievor never intended to show up for work on June 10, that this misconduct was serious, and that the discipline imposed was justified,” said Kaplan.
Reference: Air Canada and Air Canada Component of the Canadian Union of Public Employees. William Kaplan — arbitrator. Jackie VanDerMeulen for the employer. Adrienne Lei for the employee. Nov. 20, 2018. 2018 CarswellOnt 19737
