Termination set aside, substituted for suspension
Darren Grindheim, a primary care paramedic, was terminated by Northeast EMS when he called in sick after being denied a request for a day off.
One year after being hired by the Saskatchewan-based employer, Grindheim’s wife was killed in a motor vehicle accident, leaving him to raise his two young children. Grindheim testified the assistance of caregivers and nannies was not a luxury, but rather a necessity.
In early 2011, Grindheim was in the process of hiring a new nanny. The nanny arrived in Saskatoon from the United States on Saturday, Feb. 12, 2011, but the paperwork was not in place to allow her to stay in the country.
The border services agency gave the nanny a seven-day permit. On the Sunday and Monday that followed, Grindheim made efforts to resolve the permit issue. When it became clear this was impossible, he began making travel arrangements to return the nanny to the U.S.
On Monday, Feb. 14, Grindheim was able to book a flight for the following day. He called his supervisor, Jessica Taylor, to explain he would not be at work the next day.
Grindheim testified Taylor called him back shortly thereafter to inform him Lyle Moffatt — the owner and general manager — had denied his request. Grindheim was instructed to be at work the next day.
Grindheim testified he was under an incredible amount of stress dealing with arrangements for the nanny to return to the U.S. He said he had a sleepless night and, on the morning of Tuesday, Feb. 15, he was suffering from a headache and what felt like a "big, bad cold" coming on.
At 7 a.m., Grindheim called Taylor to book off sick for the day. She informed him he could not book off sick and advised him to call Moffatt.
Grindheim left a message informing Moffatt he was sick and would be booking the day off. After taking some cold medication Grindheim dropped his children off at school and took the nanny to the airport.
In cross-examination, Grindheim testified his absence from work on Feb. 15, 2011, had nothing to do with taking his nanny to the airport but was because he felt sick enough that he should not attend work.
The employer, however, did not believe Grindheim was sick. Moffatt testified he no longer trusted Grindheim, arguing there was no evidence he had been seen by a physician for his alleged sickness. On Feb. 24, Moffatt called Grindheim into his office and fired him for insubordination and fraud.
The Health Sciences Association of Saskatchewan filed a grievance on Grindheim’s behalf, arguing his involvement with the union was the real reason behind his firing.
At the same time Grindheim was trying to find a new nanny, he became heavily involved in efforts to organize the workplace. The Health Sciences Association of Saskatchewan formed a bargaining committee in January 2011 and embarked on a tumultuous series of bargaining meetings.
The union requested Grindheim be reinstated and made whole for any losses.
While arbitrator William F.J. Hood agreed abuse of sick leave can be comparable to employee theft in its impact on the employment relationship, he ruled the employer’s claims of fraud and theft were blown out of proportion.
Hood said he sympathized with Grindheim’s moral and practical obligation to get the nanny back to the United States, but found it did not justify his missing work that day and disobeying the direction from his employer.
Hood ruled Grindheim’s failure to report to work was misconduct and deserving of discipline.
Due to mitigating circumstances such as Grindheim’s relatively long service and discipline-free record, however, Hood found dismissal to be excessive.
The termination was ordered set aside and substituted with a one-day suspension without pay. Hood also ruled Grindheim be made whole for the loss of pay and benefits resulting from the firing.
Reference: Medstar Ventures Inc., carrying on business as Northeast EMS and the Health Sciences Association of Saskatchewan. William F.J. Hood — Arbitrator. Gordon D. Hamilton for the employer, Marcus R. Davies for the union. Aug. 28, 2014.
