Employee dismissed after injury-related absence

Worker did not provide excuse in timely manner

Jason Kacsur was fired on June 26, 2015, after being absent from work for four days.

Kacsur’s employer — the Windsor, Ont-based Kautex Textron — dismissed him because he was absent without a reasonable excuse. Unifor Local 195 filed a grievance on Kacsur’s behalf, arguing he did have a reasonable excuse and should be reinstated and given full compensation from the date of his dismissal.

In May 2015, Kacsur cut his finger on broken glass while washing dishes at home. The injury required stitches but Kacsur continued to attend work.

In the weeks following his injury, however, Kacsur became concerned about the cut and attended the emergency department of his local hospital. It was determined Kacsur had cut a tendon when he was injured and had subsequently developed a staph infection.

He was prescribed a course of out-patient IV treatments and told to return for a followup.

Kacsur was also given an emergency room "work note" dated June 12, 2015, that excused him from work for five days. He presented this note to the employer’s HR department and was given a "Sickness and Accidents" form to complete.

On June 18, Kacsur informed the employer he would return to work on June 22. Later that day, however, he had a follow-up with his doctor and it was recommended he take a period of weeks off work to fully recover. According to Kacsur, another Sickness and Accidents form was completed to relay this information to the employer.

But the employer denied being made aware of this subsequent form. On June 26, four days after Kacsur was expected back at work, his employment was terminated.

According to the employer, workers are required to provide a reasonable excuse for absences in a timely manner. Kacsur did not provide management with a reasonable excuse for his absences in a timely manner, it said, and in fact only provided his excuse during arbitration.

The union, however, argued the employer’s timeliness requirement should not be read into the parties’ collective agreement.

Arbitrator Ted Crljenica agreed, saying, "Had the parties intended that the deemed terminated clause be triggered by a failure to provide timely notification to the employer, they could have easily included such a requirement in the article."

This does not mean employees are not required to notify the employer when they are unable to attend work as scheduled. Kacsur clearly acted in an irresponsible manner by failing to inform his employer of his inability to work, Crklenica said.

However, the parties’ collective agreement does not contain a clause specifically requiring employees to provide a reasonable excuse for absences in a timely manner and, therefore, Kacsur was not fired for just cause. As a result, his grievance was allowed and Crljenica ordered Kacsur be reinstated without loss of compensation, benefits or seniority.

Reference: Kautex Textron and Unifor Local 195. Ted Crljenica — arbitrator. Michael Wills for the employer, Michael P. Renaud for the union. Dec. 17, 2015.

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