A Suncor oilsands worker who called in sick amongst the confusion of the Fort McMurray, Alta., wildfires in 2016 did not act dishonestly or abuse the company’s sick leave program, an arbitrator has ruled.
Kevin Zwozda was a field operator and production technician. Hired in 2008, he lived about 700 kilometres away from work and flew to and from the Firebag camp, where he stayed for several days at a time to work. Zwozda had no disciplinary record.
Suncor had an integrated disability management (IDM) program for employees who were too sick to come to work — if they were off work for medical reasons, they had to be examined by a physician while experiencing symptoms, and they had to notify their supervisor if they had a health problem that could affect their fitness for work.
The procedure for calling in sick required an employee to call the shift supervisor, the “shift C supervisor,” and the sick line.
On May 1, 2016, a wildfire started near Fort McMurray, about 120 kilometres from the Firebag site. Operations at the camp were put into “safe” mode with reduced production and staff.
Zwozda was sent home on May 7, two days before the end of his shift. But on the evening of May 15, the operations supervisor told him he was needed at work the next day. Zwozda said he wouldn’t be able to make it back in time.
The next morning, Zwozda texted the shift C supervisor to say he had called in sick that morning and wouldn’t make it in, and he called the on-site supervisor. The shift C supervisor didn’t tell him to call the IDM representative or sick line because he already had the information, though Zwozda did call the sick line.
Three days later, he texted again to say he had dental X-rays done on an infected tooth that may require surgery in late summer.
Suncor’s third-party absence reporting system operator, Morneau Shepell, emailed the shift supervisor a report of Zwozda’s absence indicating the reason was “fire — town evacuated” and in the spot indicating if the employee was capable of performing work, said “n/a” instead of “no.”
The week of May 23 to 29 was a scheduled off-week for Zwozda, so he returned to work on May 30. The on-duty shift supervisor asked him why he hadn’t called the IDM rep while absent, and Zwozda said he thought the process had changed because of the fires. The supervisor told him to contact the rep because he had been absent for more than 40 hours.
Zwozda told the IDM rep he had not sought medical treatment or assessment during his absence from May 16 to 23. However, he applied for short-term disability (STD) benefits and told an adjudicator a few days later he had been exposed to smoke from the fires that had caused symptoms, but didn’t seek medical help.
The adjudicator determined that because he didn’t seek medical treatment or assessment during his absence, it couldn’t be supported under the IDM program.
Suncor called a meeting to discuss Zwozda’s absence from May 16 to 23. He explained that on May 16 he “wasn’t feeling great” because of smoke symptoms. He said he may have mentioned he had been evacuated to the sick-line agent, which could be why his absence was reported as “fire — town evacuated.”
The agent asked Zwozda if he was calling in sick for that day or his whole cycle, and he responded “I don’t know yet, probably for part of the cycle anyway.” But the only absence report was for May 16.
Zwozda was suspended with pay while Suncor investigated. He provided a physician’s assessment from his dentist but no details on medication.
He told a Suncor health advisor his medical issues were not work-related and the medications were “an anti-inflammatory and an antibiotic” and he didn’t feel he could have worked from May 16 to 23. However, he had not sought medical help during his absence for the smoke symptoms.
It was decided Zwozda’s absence wasn’t medically supported and his application for STD benefits was denied. Suncor’s investigation determined the discrepancy between his initial call-in and his STD application indicated dishonesty and an abuse of sick leave under the IDM program. It also found his report of dental issues was an attempt to make his health situation more serious.
The company terminated Zwozda’s employment for “an irreparable breach of the essential trust” on July 20.
Arbitrator weighs in
However, the arbitrator found that on May 16, Zwozda believed he was calling in sick and said as much in his text to the supervisor. He may not have specifically said he was calling in sick but because it was the sick line, it wasn’t necessary. The agent didn’t ask him the reason for his absence, which led to the absence report indicating the fire was the reason, said the arbitrator.
None of the supervisors or management followed up with Zwozda during his absence and there was no further request for him to come into work — which didn’t make sense if he was considered absent without reason, said the arbitrator. There was no evidence Zwozda was trying to convince Suncor he was too sick to return to work that week. Instead, the reasonable conclusion from the lack of followup was Suncor didn’t expect him to return.
The arbitrator determined Zwozda didn’t abuse the IDM program and properly followed procedure. He also didn’t fraudulently apply for STD benefits — he felt unwell on May 16 and wasn’t lying about his dental issues and medication. He didn’t provide enough information to be approved for benefits, but it wasn’t a false application, said the arbitrator.
Suncor was ordered to reinstate Zwozda to his position, with compensation for lost pay.
For more information, see:
•Suncor Energy Inc. and Unifor, Local 707-A (Zwozda), Re, 2018 CarswellAlta 474 (Alta. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
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