Tardiness leads to termination under progressive discipline policy

Medical note policy in conflict with collective agreement

The Iron Ore Company of Canada fired one of its Newfoundland-based employees as a result of its recently implemented progressive discipline program.

Lorne Winters worked rotating shifts as a maintainer operator at the employer’s mine maintenance facility. On July 14, 2014, he missed a scheduled overtime shift. Winters called and left a message at the start of the shift to inform his supervisor he would not be attending work.

Winters had already used his allotted seven days of sick leave/family responsibility leave so his supervisor expected him to bring a medical note when he reported for his next shift on July 15.

Winters did not have a medical note excusing his absence when he returned to work on July 15. He apologized to his supervisor, saying he forgot it.

When Winters returned to work on July 16, he still did not have a medical note.

After consulting with an HR employee, Winters’ supervisor integrated him into the employer’s new progressive discipline policy.

Because Winters had a three-month suspension already on his file, the next step in the new policy was a four- to seven-day suspension and final warning.

When Winters was informed he was being suspended for four days and issued a final warning, he confided in his supervisor that he was struggling with depression. The employer offered Winters help from the employee and family assistance program (EFAP) and Winters went to the hospital to be assessed and get a medical note.

Winters testified his doctor told him a medical note could not be backdated and no medical note was ever provided for his July 14 absence.

On Nov. 30, Winters didn’t come to work. When a supervisor called him at home, Winters said he had overslept and would report to work as soon as he could. He ultimately arrived one hour after his scheduled start time. The next step under the employer’s progressive discipline policy was termination of employment.

The employer considered several factors before dismissing Winters, including his multiple disciplinary infractions and relatively short length of service.

Union files grievance

Winters’ union — United Steelworkers Local 5795 — filed grievances against his suspension and dismissal. The union requested he be reinstated and compensated.

The union argued the employer did not have just cause to discipline Winters for failing to bring a medical note for his absence on July 14 because the collective agreement only required a medical note for sickness of more than three days.

This article of the parties’ collective agreement should outweigh the employer’s practice to require a medical note for every absence after seven days.

The union further argued the employer failed to consider Winters’ struggle with depression as it related to his absences from work, saying the employer set Winters up to fail.

Arbitrator James Oakley disagreed the employer’s policy to require a medical note after seven days of sick leave/family responsibility leave was in conflict with the parties’ collective agreement. The agreement, Oakley said, does not state there are no other circumstances when a medical note may be required. He found the employer had just cause to discipline Winters for his absence from work and his failure to provide a medical note. The grievance was denied.

Regarding Winters’ failure to arrive at work on time on Nov. 30, the arbitrator found the employer had just cause to impose discipline. However, considering Winters’ remorse and his personal and family issues at the time, Oakley ruled the employer did not give reasonable consideration to the case's mitigating factors.

He ruled Winters’ termination be substituted with a seven-day suspension and final warning. Winters was ordered reinstated subject to the seven-day suspension and paid compensation from the date of reinstatement.

Reference: Iron Ore Company of Canada and the United Steelworkers Local 5795. James C. Oakley — arbitrator. Darren C. Stratton for the employer, Lawrence E. McKay for the union. June 25, 2015.

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