Termination for repeat absences not mitigated

The grievor had attendance problems. The company accomodated his absences when he phoned in, but he had failed to inform his supervisor on four occasions over 12 months. The arbitrator found insufficient evidence for his claim that he was suffering from a mental health problem.

A warehouse worker was fired for misconduct following four unscheduled and unexplained absences over a 12-month period.

J.H. worked as an order assembler at a produce and perishables warehouse operated by a retail grocery chain.

J.H. had nearly six years’ service when he was fired on June 29, 2009. J.H. was regarded as a capable and diligent worker; however, his disciplinary record showed repeated violations of the company’s Attendance Policy.

Illegitimate absences and AWOLs were counted as “Occurrences” in the company’s revolving and escalating four-step progressive discipline program.

Workers who had four occurrences credited against them within a 12-month period could be subject to termination.

Single parent

As a single parent with sole custody of four school-age children, J.H. occasionally had difficulties matching his childcare needs with his work schedule. The employer was sensitive to J.H.’s circumstances and granted him about 33 personal days over the period 2004–2009 to cover childcare gaps. On these occasions, J.H. had either phoned in to explain his situation or had even driven in to work with his children in tow.

However, when J.H. failed to phone in or otherwise explain his absence, he was disciplined.

J.H. was assessed a three-day suspension for a no-show on Aug. 3, 2008. His record at that time showed two other illegitimate absences within the previous 12 months.

April 26, 2009 was to be J.H.’s first day back at work following a six-month education leave. J.H. was unsettled about his return to work and feeling faintly ill. J.H. reported that he showed up on time for his 7:30 a.m. shift. However, J.H. discovered that his locker had been rifled during his absence. He also realized that he did not have safety boots as required. J.H. retreated to his car and fell asleep. He returned to the plant at noon but again disappeared shortly afterwards and was not accounted for between 12:30 and 3:30. J.H. was assessed another three-day suspension and cautioned that another occurrence would result in his termination.

J.H. called in to work early on June 9, 2009 to say that he might be unable to attend work that day. He called in again two hours later to say that he would be absent so that he could attend a funeral.

J.H. was absent for his scheduled shifts the following two days. J.H. was assessed another three-day suspension as these absences were counted as a third occurrence within 12 months.

J.H. was AWOL three weeks later on June 28.

J.H. was fired. The union grieved.

The union initially presented evidence to suggest that J.H.’s June 28 absence was non-culpable because he had suffered some form of mental breakdown. However, the union ultimately conceded that it did not have sufficient evidence to support a claim for mental disability. The union also conceded that J.H.’s attendance record was a problem. Nevertheless, the union requested that the Arbitrator consider a number of mitigating factors and exercise discretion to substitute the termination with a lesser penalty.

The union said there was no evidence to suggest that J.H.’s absence was premeditated. He performed well when he was at work and, even if the evidence presented fell short of establishing a disability, J.H. was doing his best to cope with significant stress. Moreover, termination would represent significant hardship to J.H. who was working to raise four children on his own.

Not unreasonable

The Arbitrator upheld the termination.

The Arbitrator said the test to determine whether or not it was appropriate to exercise discretion to set aside a termination in these circumstances required a determination that the penalty imposed was unjust or unreasonable.

The termination was not unreasonable, the Arbitrator said.

Insufficient evidence was presented to establish that J.H. was suffering from a mental disability, the Arbitrator said. There was no credible explanation for J.H.’s failure to call in on June 28. He had shown himself capable in the past of notifying the employer even in circumstances when he did not have access to a telephone.

J.H. was aware that he was required to call in. He was also aware and had been warned about the consequences of a fourth occurrence.

“I have considered the progressive discipline policy adopted and enforced by the Company. I note that more moderate forms of discipline had earlier been imposed without sufficient or satisfactory improvement. I find that the Company’s discipline policy was consistently imposed.”

J.H. wasn’t being fired because he failed to call in for one shift, the Arbitrator said. He was being fired because he had reached the last step in a progressive discipline regime that had warned him repeatedly about the potential consequences of his actions.

“[I] am unable to conclude that the Company’s enforcement of the Policy was unjust or unreasonable in the circumstances.”

The grievance was dismissed.

Reference: Canada Safeway Limited and United Food and Commercial Workers Union, Local 401. J. Alexander-Smith — Sole Arbitrator. Kevin Tamblyn for the Union. Joyce Mitchell for the Employer. June 27, 2012. 19 pp. 

Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.

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