Arbitration cases a lesson for employers
To quote Mark Twain, “Everybody talks about the weather but nobody does anything about it.” But plenty of people do something in reaction to it.
For employers, tough Canadian winters can pose serious quandaries. Should the workplace close when the snow piles up? And how should employers handle workers who refuse to come in?
That is the subject of one of this issue’s cover stories (“When the snow flies, should the office stay open?”). In it, we talked to employers small and large about how they cope during extreme weather. And we spoke with an employment lawyer for his take on what the laws say, the whole notion of liability and how employers should react.
To get an idea of what happens when weather-related absences cause a ruckus in the workplace, I conducted a quick search of the archives of Canadian Employment Law Today (www.employmentlawtoday.com). Two arbitration decisions — one in favour of the employer, one in favour of the employee — shine some light on what a third party thinks when an employee says she can’t come into the office because of inclement weather.
The first involved a Canada Post worker in Brampton, Ont., who didn’t report to work on two separate occasions because she didn’t want to drive in bad weather — so much for the “through rain, through sleet, through snow, through hail” mantra.
On both days, she left her home to start her shift at 7 a.m. but turned back because of road conditions — bad snow one day, freezing rain the other. She was the only one in her 20-person department who did not report to work, though a couple were late because of weather.
Canada Post denied the worker special paid leave for those two days so she filed a grievance. The arbitrator ruled in favour of the employer, stating if the worker felt driving was unsafe, she had the option of taking public transit. The worker didn’t want to take public transit because the bus stop was a 10-minute walk — she didn’t think it was safe to walk in the bad weather — and it required three transfers to get to her workplace.
The second decision involved a registered nurse who worked at Foothills Medical Centre in Calgary. She lived at the end of a 200-metre driveway on an isolated road northwest of the city. Following a snowstorm, her driveway was completely impassable because of high drifts. On the second day, it looked like she would be able to make it — but once she got out onto the isolated road, she discovered it had not been plowed and she got stuck. She applied for special paid leave but it was denied.
Her employer suggested it was foolish of her to live so far off the main road. The medical centre also suggested she should have made alternate plans to stay with friends in Calgary because there had been plenty of warning of the storm.
The arbitration board ruled in favour of the nurse. It said asking her not to go home because of weather was not reasonable. “One cannot expect employees to leave their homes every time there is some degree of risk,” it said.
And the board rejected the notion the nurse’s choice in living where she did disentitled her to the special leave. She had a good attendance record and there was no evidence presented to show others from similar locations had made it to work when she hadn’t.
So what should employers do when the snow flies? A mix of common sense and compassion sounds like the perfect recipe.
