Employed for 11 months, J.M. was working the 8 p.m. to 4 a.m. shift as a warehouse worker when she was fired for violating the company’s guidelines on personal conduct. The guidelines specified immediate termination for unauthorized absences of three consecutive days.
The union grieved, arguing that the company had not made out a case for discipline and that the penalty imposed was too severe in any event.
J.M. did not finish her first shift following her return from summer vacation. Saying she was not feeling well, J.M. left work early, returning to work two weeks later with a doctor’s note.
Some three weeks following her return, J.M. sustained a number of injuries after falling down the stairs at her home.
J.M. informed her manager of her status in accord with company guidelines that require employees to notify a manager and secure permission for any absence prior to the beginning of the shift.
Following a consultation with her doctor the next day, J.M. was prescribed pain medication and given a follow-up appointment five days later on Tuesday, September 11. She was ordered to stay off work in the interim.
While it was established that J.M. called her manager on September 7, what was said was in dispute. While J.M. maintained that she informed her manager that her status was questionable until after her follow-up appointment, her manager maintained that J.M. had committed to returning one day earlier, on Monday, September 10.
J.M. testified that she called her manager on September 12 and left a voicemail indicating that she would be off for the remainder of the week.
J.M.’s manager testified that he received no such message and stated that he called and left a message on her home telephone on September 12 instructing her to call. That message was not returned by the next day when the process had begun to fire J.M. for abandonment of her job.
The employer argued that termination was justified. J.M. was a short-term employee who knew the rules and had failed to keep the company properly informed about her ability to report for work.
Facts don’t support termination
The Arbitrator disagreed. While acknowledging the legitimacy of the company’s interest in taking action to ensure the regular attendance of its employees, in this case the company had failed to establish the facts necessary to support J.M.’s summary termination.
The company failed to follow its own procedures with respect to providing modified work for J.M. following her injury, the Arbitrator said. As well, even though the company’s policy did not commit it to investigating employees’ claims that their absences were justified, “the Company bears the burden of establishing the facts necessary to support just cause for summarily discharging [J.M] …”
In the face of disputes about dates and the substance of telephone calls, the company’s inability to provide contemporaneous notes and witness statements to clarify key points served to undermine what the company may have thought was a “clear cut” case, the Arbitrator said.
J.M. was, for the most part, able to provide telephone records that established the dates of her calls to the employer. In particular, records indicating that J.M. phoned the employer on both September 10 and 12 called into question the employer’s allegation that she had abandoned her employment.
Moreover, without clear documentary evidence, the Arbitrator was unable to accept the manager’s report that J.M. had committed to returning to work on September 10.
“[I] must prefer [J.M.’s] evidence as being more clear and consistent with all the surrounding circumstances insofar as her testimony is that [the manager] would have reasonably understood that she would not be in a position to confirm her availability for work until after her scheduled meeting with her doctor.”
While the Arbitrator was sympathetic to some of the company’s “legitimate” suspicions about the justifications for J.M.’s absences, it did not have sufficient cause to terminate her employment.
“[W]hile the Company may have had reason to be concerned about [J.M’s] attendance record, I conclude on the evidence before me it did not have just cause to terminate the employment relationship for the alleged abandonment of her employment and/or violation of the Company’s Guidelines for Personal Conduct.”
The grievance was allowed, and J.M. was ordered reinstated with no loss of seniority and appropriate compensation.
Reference: Progistix Solutions Inc. and Communications, Energy and Paperworkers Union of Canada, Local 26. Gordon F. Luborsky — Sole Arbitrator. Micheil M. Russell for the Union and Brian P. Smeenk for the Employer. June 4, 2010. 37 pp.