Dismissal reasonable under Return to Work Agreement: Arbitrator
A paramedic and 15-year employee for Emergency Medical Care in Nova Scotia was fired for excessive absenteeism, twice.
The employee — referred to in arbitration as "AB" — was first terminated by the employer in 2012. His union, the International Union of Operating Engineers Local 727, grieved the dismissal and he was reinstated through a Return to Work Agreement in 2014.
Beginning in 2010, the employer had growing concerns about AB’s declining performance, use of sick leave and absences from the workplace. Following a number of warnings AB was dismissed for his ongoing absenteeism, his failure to report to work as scheduled and his failure to report to appropriate supervisors when he was unable to attend his scheduled shifts.
Following his dismissal, AB made it clear his absenteeism was related to an addiction to alcohol arising from anxiety and depression. This information was unknown to the employer prior to AB’s termination, and the parties agreed to settle the grievance with a Return to Work Agreement.
The agreement, in part, stated the employer could rely on AB’s past absenteeism to dismiss him for just cause. The agreement also required AB to report his inability to attend work in a timely manner.
AB returned to work in August 2014. In September, he missed several shifts and provided a doctor’s note to the employer. The employer was concerned the note did not address its concerns about AB’s sudden departure from work and asked for further clarification.
A second note was provided but the employer continued to have concerns, asking AB for permission to discuss his condition with his physician. AB agreed to give the employer full access to his doctor.
The night of Dec. 19, AB suffered from periods of insomnia and diarrhea. He attempted to call his supervisor at about 6:45 a.m. to report he would not be attending work as a result of his illness. He was not, however, successful in connecting with the employer.
At 7:04 a.m., a manager called AB to find out where he was and whether he was running late due to the weather conditions. AB did not answer so the manager sent him a text message. AB replied through text message to tell the manager he would not be coming in.
Management met to discuss AB’s absences and on Jan. 5, he was fired. The union grieved the termination, arguing AB’s addiction and mental health issues were the root cause of his absenteeism. Despite his personal difficulties, AB had always been compliant, even giving the employer access to his doctor.
The union further argued that AB did attempt to alert the employer he would be unable to attend work on Dec. 20 as a result of his illness but was unable to reach his manager before his 7 a.m. shift.
Considering all of these mitigating circumstances, the union argued AB should be reinstated with retroactive pay and benefits.
The employer, however, argued that almost immediately after getting a second chance at employment, AB had fallen back into his old ways.
Arbitrator Augustus Richardson was satisfied AB’s illness the night of Dec. 19 was a valid medical condition that prevented him from attending work on Dec. 20. However, he was also satisfied AB failed to notify the employer prior to the start of his shift that he would not be attending work. Richardson said AB’s one attempt to reach his employer was not a sufficient effort.
“The requirement to provide notice — and, in particular, advance notice — as soon as possible is all the more important in the case of the employer,” Richardson said. “It provides ambulance and paramedic service to injured and sick people. The safety of its paramedics and the public it serves depends upon its ability to provide fully staffed ambulances.”
Richardson found the employer’s decision to terminate AB was reasonable and the grievance was dismissed.
Reference: Emergency Medical Care Inc. and the International Union of Operating Engineers Local 727. Augustus Richardson — arbitrator. Rebecca Saturley and Michelle Black for the employer, David Wallbridge for the union. Nov. 29, 2015.
