Doctor’s note gets worker out of doing overtime

No other employees disciplined for participating in overtime ban

An employee at Rio Tinto Alcan’s Kitimat, B.C., operation was reinstated by an arbitrator after being terminated over an overtime restriction.

The restriction, imposed on grievor Jason Milne by his doctor, said Milne could not perform overtime duties because of stress-related concerns.

The issue arose in October 2013 when Rio Tinto announced it would be reducing the amount of time off accrued by employees
in response to operational requirements. The amount of overtime worked was drastically reduced and the employer then sought out the labour relations board to end the overtime ban by employees. In the meantime, volunteer employees worked overtime.

In November 2013, the provincial labour board ruled the employer could invoke its mandatory overtime provision as outlined in the collective agreement. However, the next day, Milne provided a medical note saying he could not work overtime.

The employer was concerned that Milne — who had worked significant overtime hours in the past — was able to work for a contractor during his off-hours, despite the doctor’s note.

The company consulted an occupational health and safety expert, and it appeared the no overtime plan prescribed by the grievor’s doctor was based on supporting statements from the grievor — and during a meeting, the grievor said he could have the restriction removed.

Milne was then informed his continued employment at Rio Tinto would be jeopardized if he did not work overtime.

In December, Milne was interviewed for a second time and it was concluded he was still continuing the overtime ban. He was fired.

However, Milne said he had made an appointment to discuss it with his doctor. Milne said he was having personal issues at home and health problems, and he found his work environment to be stressful, because of tension and conflict with management. Milne said his doctor had advised he not work overtime hours.

For these reasons, his union, Unifor Local 2301, argued termination was excessive.

The employer, on the other hand, justified the decision to terminate Milne as he was essentially taking part in an unlawful work stoppage, and his excuse for doing so was not entirely credible.

Arbitrator Christopher Sullivan said in his decision that Milne was forthcoming and candid when discussing his medical concerns, and many employers have similar concerns when it comes to an employee’s medical restrictions.

Further, no other employees were disciplined for partaking in the overtime ban. The grievor’s situation did not involve an attempt to challenge or otherwise undermine management’s authority, nor did it contribute to production problems or financial loss to the employer, Sullivan said.

Coupled with the fact Milne was a 15-year veteran with good performance evaluations, Sullivan agreed with the union that termination was excessive.

Instead, he ordered termination be replaced with a three-day suspension and Milne be made whole for other losses.

Reference: Rio Tinto Alcan and Unifor Local 2301. Christopher Sullivan — arbitrator. Kevin O’Neill for the employer, Bruce Laughton for the union. Aug. 28, 2015.

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