You make the call
This instalment of You Make the Call features a worker who used too much sick leave for the employer’s taste.
Big Lake Logging is a logging contractor based in Port Alberni, B.C. In 2017, Big Lake was contracted by Western Forest Products to work a tree farm licence and was subject to a single collective agreement that Western Forest Products implemented for five different contractors it was using on the project.
Big Lake shared equipment and administrative services with another company, IFC, whose owner controlled 50 per cent of Big Lake. The two companies also used the same third-party administrator to handle illness and injury administration.
In October 2017, Big Lake recalled several employees to help harvest the tree farm. IFC called a meeting with the employees to tell them it wanted to carry on with the harvesting contract past a trial period, but in order to do so all employees of the five contractors had to be under a single collective agreement, but with the seniority list broken into five pieces — one for each contractor, with no bumping between them.
Many of the employees felt this was a threat that if they didn’t agree to split the seniority list, IFC and Big Lake wouldn’t continue with the harvesting contract. One worker — a grapple yard operator — who had held union positions in the past was asked to help the union by joining the “camp committee.” After doing so, the worker claimed his foreman called him at home to angrily ask whose side he was on. Additional messages followed.
The worker chaired a heated union meeting in which the five-list proposal was rejected. Afterwards, a manager decided to phone all the employees individually for a secret vote, which led to the worker receiving calls from upset employees.
On Dec. 3, 2017, the worker informed the foreman that he would be off the next day due to stress and he was going to see his doctor. He also said he was going to file a harassment and bullying complaint, as he had been suffering from stress, anxiety, and panic attacks due to the tension between the union and the company. When he later indicated he would be back at work after missing one day of work, the co-owner of Big Lake informed him he would have to get medical clearance before returning.
The worker provided a doctor’s note that said he was “currently unable to work under the circumstances at work until it has been resolved.” He then accepted an offer of the same position with another logging company and worked off-and-on with the company for a few months.
The worker filed a workers’ compensation claim indicating he had “found temporary work removed from these issues” and told the third-party administrator that “there are other places he can find work temporarily until all of the union stuff is sorted.”
Big Lake learned of the worker’s new job and had some back-and-forth communication with him about his clearance to work. The worker said he was expecting clearance by the end of January, but in fact didn’t have a doctor’s appointment until Feb. 8.
The owner of IFC and Big Lake felt that since the worker was doing the same work for another employer, he hadn’t been forthcoming with his doctor about his illness and mental disability. Big Lake terminated the worker’s employment for abandonment of position, working for another employer while on sick leave, and dishonesty.
You Make the Call
Were there grounds for termination of employment?
OR
Was the worker wrongfully dismissed?
If you said the worker was wrongfully dismissed, you’re right. The arbitrator found that the worker wasn't absent without leave, as Big Lake accepted his doctor’s note and that he would be absent until matters were resolved. There was no basis for the claim he had abandoned his position, said the arbitrator.
In addition, the work the worker was doing for another employer was not a ground for discipline, since the reason he was off work was the stress from the circumstances with Big Lake — circumstances that didn’t exist at the other employer. The worker also didn’t try to hide that he was working elsewhere, mentioning it in his workers’ compensation claim and telling the administrator.
“I find that the worker did not abandon his position and was on an approved and medically bona fide leave throughout the relevant period, and that the dismissal was without cause,” said the arbitrator. “The objective facts show that he was open about the alternate employment and that the work restriction was for Big Lake where he experienced the stressors which brought on the symptoms, but not elsewhere; and that when he felt sufficiently recovered he attempted to return to work at Big Lake.”
Big Lake was ordered to reinstate the worker without loss of seniority or pay. See Big Lake Logging Ltd. and USWA, Local 1 – 1937 (Neuwirth), Re, 2019 CarswellBC 512 (B.C. Arb.).
