'If the employee doesn't change their ways, then you get to the point where discharge is justified'
“Without clear communication of what expectations are, an employer is not going to be able to impose discipline if an employee has no idea what was expected of them.”
So says Darren Stratton, a labour and employment lawyer at McInnes Cooper in St. John’s, after a Newfoundland and Labrador arbitrator upheld the discharge of a worker for repeatedly breaching absence reporting requirements.
There's value in progressive discipline for correctional purposes as well as supporting just cause, according to Stratton, who represented the employer in the case.
“The desired result is that you reprimand the employee, they address the issue, and the employment relationship as is basically salvaged - but if the employee doesn’t change their ways, then you do get to the point where discharge is justified,” he says.
Sick day policy at mine
The 33-year-old worker was employed by Iron Ore Company of Canada (IOC), an iron mining company based in Montreal. He was hired in June 2021 as an operator maintainer in the maintenance department at IOC’s pellet plant in Newfoundland and Labrador.
The collective agreement required employees who were unable to report to work because of sickness or other valid reasons to advise their supervisor directly or through voicemail at least one hour before the beginning of their shift, so the company could arrange for a replacement.
Each employee had seven days per year of unpaid sick or family responsibility leave. It was standard practice to discipline employees for failing to follow the call-in procedure or exceeding the seven-day allowance, as absences significantly affected the workload of other employees and the scheduling of maintenance work.
The worker had a history of tardiness and absenteeism, receiving an attendance coaching session, written warning, and two-day suspension in 2022. In the investigation meeting for the suspension, the worker said that he had stress in his life and had lost his driver’s license due to drinking and driving. He didn’t disclose that he had a substance dependency.
Discipline for not following procedure
On March 29, 2022, IOC’s HR advisor issued a report indicating that the worker had used nine sick or family responsibility days since the beginning of the year and was in noncompliance for missed time. The worker’s supervisor gave him a letter outlining that expectations were that he arrive at work on time, fit for duty, and without leaving early. If he was unable to report to work, he was to follow the absence reporting requirements or face progressive discipline. The supervisor also held a coaching session with the worker.
On Oct. 14, the worker didn’t report to work as scheduled. He texted his supervisor about 90 minutes after the start of his shift saying that he wasn’t feeling well, and the supervisor said that he needed to call the call centre. A couple of hours later, the call centre contacted maintenance supervisors to say the worker had called, unable to report for his shift due to medical reasons.
IOC investigated and the worker said he had been unable to call in prior to the start of his shift as he didn’t have cellphone service. He also said he had “personal things going on” and IOC asked if he needed any support from its employee family assistance program (EFAP). On Oct. 18, IOC issued a four-day suspension to the worker for failing to follow absence reporting protocols.
No request for help from worker
Following the suspension, the worker didn’t request any help or reveal any personal issues as he didn’t think he needed treatment.
On March 14, 2023, the worker requested a day off for March 16 to have a breathalyser calibrated for his truck. However, it was denied because he submitted the request late.
The worker didn’t show up for work on March 16 and didn’t call before his shift. He called nearly 90 minutes after his shift started, saying that he wouldn’t report due to personal reasons.
IOC investigated and met with the worker, who said that he had gotten a breathalyser installed in his truck. He also disclosed that he had a drug problem and needed help.
IOC determined that the worker should be discharged, as he had deliberately ignored the reporting procedure for absences and he had a history of progressive discipline for the same infractions. It also found that the worker had planned to miss work as he had already tried to take the day off. The company also determined that the worker had disclosed his substance abuse issue too late in the process and had had several opportunities to do so in order to get support through the EFAP.
Communication of expectations
IOC approached things well by following three key elements, according to Stratton - the company communicated the expectations to the worker, they used progressive discipline to reinforce the rule that had previously been communicated, and they sat down with the worker to ask why the misconduct was happening and if it could offer any assistance.
“Even if this was something that was covered in workplace rules and communicated in orientation, the fact that they used progressive discipline helped reinforce the fact that a rule had been previously communicated,” says Stratton.
The union grieved the four-day suspension and the discharge as unjust, arguing that IOC was required to accommodate the worker’s mental disability. The worker didn’t disclose his problem until his discharge because he didn’t think he had a problem, the union said.
The arbitrator noted that IOC had a clear reporting procedure and the worker was reminded of this in a letter of expectation and in each instance of discipline, so there was no doubt that he understood the requirement. In addition, his position was safety-sensitive where his absence could affect operations, the arbitrator said.
However, after multiple instances of progressive discipline, the worker failed to follow the procedure on Oct. 14, 2022. Although he provided a medical note explaining his absence, the four-day suspension was for not reporting his absence properly and the note didn’t explain why he couldn’t do that, said the arbitrator in finding there was just cause for the suspension.
Discipline warranted
The arbitrator also found that the worker didn’t have a justifiable explanation for not calling in before his missed shift on March 16, 2023, as he was aware of his appointment and could have called in earlier, regardless of his status that morning. As a result, there was just cause for discipline here as well, said the arbitrator.
The arbitrator found that the importance of attendance for scheduled shifts was made clear in the collective agreement and the progressive discipline, so the worker’s failure to report his absences was serious. When factoring in that he knew in advance he would be absent on March 16, this made the last incident even more serious, the arbitrator said.
Given that the worker had less than two years of service and a significant disciplinary record, IOC was justified in resorting to discharge, said the arbitrator. Although the worker revealed a substance dependency at his discharge meeting, he didn’t establish a disability that affected his ability to follow the absence reporting procedure, said the arbitrator, noting that to establish prima facie discrimination, there has to be a connection between the disability and the disciplinary offence.
“The Supreme Court [of Canada] has commented that you can't assume that addiction diminishes an employee's ability to follow workplace rules - you need to have some evidence of that,” says Stratton. “[The arbitrator] found that the employee self-reporting that he had used alcohol and drugs in and of itself didn't cut it, and there's an expectation that there has to be some medical evidence of disability to help satisfy that prima facie discrimination case.”
“The other thing was that there was no medical evidence that made a connection between him having an addiction and not being able to comply with the reporting obligations,” he adds.
With no evidence that the worker had a drug or alcohol addiction amounting to a disability, or at least one that affected the misconduct for which he was disciplined, the arbitrator upheld the four-day suspension and discharge.
Duty to inquire
However, employers should pay attention when an employee discloses a potential disability during the disciplinary process, says Stratton.
“Employers have a duty to inquire, not just a duty to accommodate, after disclosure by an employee, so if an employer has some reasonable suspicion that an employee's behaviour or performance might be related to a disability, then I think that reasonable suspicion triggers the duty to ask about it,” he says.
Stratton also notes that just because a disability is established doesn't necessarily mean that discipline is inappropriate.
“An employer might have to consider a hybrid approach, whereby you accommodate a disability to the point of undue hardship but, if there's still some culpable conduct on the employee’s part, you could impose a disciplinary sanction while you look for a way for them to come back to the job.”
