In Sobeys Milton Retail Support Centre, 2012 CanLII 57020 (ON LA) (Surdykowski), the arbitrator set forth his reasoning in the following terms:
Under most collective agreements, including the one between the parties in this case, the employer must decide to apply a deemed termination provision based on an unauthorized absence for a specified number of days before it is engaged. Once engaged, it is considered to be a matter of collective agreement contractual rights and obligations, not a matter of discipline or penalty..
Such a provision does more than merely require an employee to report an absence. It recognizes the fundamental employee obligation to obey his employer’s legitimate workplace direction to report for work as scheduled, and places an obligation on employees not to be absent without authorization for the specified period or longer and to provide a “valid reason” or legitimate excuse if they are. It gives the employer the concomitant right to deem employment terminated if an employee is absent for the specified period or longer without “valid reason” or legitimate excuse.
Because it is not in the nature of a disciplinary or penalty provision, the application of a deemed termination provision does not require an employer to have or prove just cause [in] the usual disciplinary sense. The employer need only show that the employee was absent for the specified number of days or longer without authorization, and a prima facie case of no “valid reason” or legitimate excuse, at which point the onus shifts to the employee [to] prove “valid reason” or legitimate excuse.
Notwithstanding that the result is the same for the employee, there are significant differences between deemed termination and discharge for just cause in both process and in law. Because of these differences, which make it easier for an employer to establish the conditions precedent to a deemed termination and place an onus on the employee to provide an acceptable reason or explanation, and the drastic consequence to an employee (i.e. the loss of employment) in circumstances which may seem unduly harsh and out of proportion to the employee’s conduct, it is well established that deemed termination provisions … must be “narrowly and strictly” construed. I agree with that, but not with the suggestion in some of the cases … that such a provision must be strictly construed against only the employer. Collective agreement provisions are not unilaterally promulgated by the employer. They are a product of collective bargaining and the language is agreed to by [the] union, on its own behalf and on behalf of the bargaining unit employees, and the employer. Both parties and the bargaining unit employees are entitled to the benefit of the collective agreement bargain – no more, no less. Strict construction is a double-edged sword.
Arbitrator Surdykowski concluded that the employee did not have a “valid reason” or indeed, any reason, for any of his absences during the relevant time period. His “… uncorroborated assertion that he was unable to work a single Company scheduled shift during the relevant period because of back issues which did not prevent him from working at his full-time [second] job is not sufficient to satisfy the “valid reason” requirement in [the deemed termination clause]. There is no medical or other cogent evidence to support the grievor’s assertion.”
Arbitrator Surdykowski then considered section 48(17) of the Ontario Labour relations Act, 1995. It provides:
Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and equitable in all the circumstances.
He found that the provision did not apply because the employee’s employment was terminated by application or operation of the collective agreement and not for cause. He therefore had no jurisdiction to mitigate the effect of the Company’s decision, either by reinstating the grievor to employment with the Company or otherwise.
The grievance was dismissed.