llness and Absenteeism.com - October 2018 Newsletter

In this issue, you will find:

A.  Featured Case: An employer who was in possession of surveillance evidence or other evidence suggesting that an absent employee was capable of working erred when it failed to fully confront the employee with such evidence (and seek his explanation) prior to terminating his employment. By way of remedy, the arbitrator directed that the employee provide a medical opinion concerning his capacity and limitations, both as of the date of the termination, some three years earlier, and as of the date of the award. He also directed that the employee undergo a functional capacity evaluation. The employer, for its part, was directed to provide particulars of accommodating work available in its workplace. The parties were ordered to then meet to determine if the employee’s disability(s) could be accommodated without undue hardship. The arbitrator retained jurisdiction to ultimately issue an award addressing those issues.

The decision also addressed the Supreme Court of Canada’s decision in Ares v. Venner concerning the admissibility of hospital records without having to call the author of each of the hospital’s documents.   [Click here]

B. Recent Decisions of General Interest

1. An arbitrator refused to accept medical evidence setting forth an employee’s restrictions on the basis that the restrictions had been based on the self-reporting of an employee whose testimony lacked credibility.    [Click here]   

2. Generally speaking, a deemed termination provision will apply, irrespective of the consequences, once the employer has established that the employee’s conduct fell within the ambit of the provision.   [Click here]  

3. An employee who was suffering from an addiction to alcohol and pain killers was found to have been improperly terminated for failing to report for work and for having been unresponsive to the employer’s requests for medical justification. The arbitrator stated that the employer should have considered disciplining the employee for having failed to advise of his pending absence while at the same time imposing a condition that the employee, prior to returning to work, provide a proper and fulsome account of his fitness to work along with a prognosis concerning his future attendance.    [Click here]

4. An employee who was terminated for having improperly disclosed a patient’s HIV status was reinstated with a one month suspension being substituted in lieu of the termination.    [Click here]

5. The termination of an employee pursuant to a deemed termination clause was set aside on the basis that the employer had not taken any real issue with the bona fides of the employee’s absence and the medical notes that supported his absence. The employee was reinstated with compensation for all lost wages and benefits. The employee, who frequently worked overtime, was to have his overtime earnings recognized in calculating his damages.    [Click here

 


 A.  Featured Case: An employer who was in possession of surveillance evidence or other evidence suggesting that an absent employee was capable of working erred when it failed to fully confront the employee with such evidence (and seek his explanation) prior to terminating his employment. By way of remedy, the arbitrator directed that the employee provide a medical opinion concerning his capacity and limitations, both as of the date of the termination, some three years earlier, and as of the date of the award. He also directed that the employee undergo a functional capacity evaluation. The employer, for its part, was directed to provide particulars of accommodating work available in its workplace. The parties were ordered to then meet to determine if the employee’s disability(s) could be accommodated without undue hardship. The arbitrator retained jurisdiction to ultimately issue an award addressing those issues.

The decision also addressed the Supreme Court of Canada’s decision in Ares v. Venner concerning the admissibility of hospital records without having to call the author of each of the hospital’s documents.

In Tolko Industries Ltd., 2017 CanLII 43282 (AB GAA) (Sims), the employee was terminated for alleged dishonesty concerning restrictions on his physical activity. At the time, he was on long-term disability leave covered by insurance benefits. The employer’s view of the employee’s dishonesty was based on a surveillance report it had commissioned showing a healthier capacity than the employee had earlier described.

The site manager had noticed the employee operating an all-terrain vehicle (an ATV). The employee was called in for a file review. The employee’s description of his abilities at that time appeared to be at odds with the activities that the manager had observed.

The employer decided it would pursue surveillance. It contacted the insurer and was told that such surveillance would be at its own cost. In anticipation of initiating surveillance, the insurer’s claims manager contacted the employee by telephone and obtained from him a description of his then current restrictions. Those restrictions/disabilities along with photographs of the employee were given to the private investigator retained by the employer.

Surveillance was conducted over a six or seven day period. After reviewing the Investigator’s report, the employer called the employee in for further questioning. He was not told of the existence of the surveillance report. The meeting was intended to provide the employee with an opportunity to disclose any changes in his condition. It was put to the employee that he had been seen to be driving a snowmobile but he denied having done so. The employee was then terminated.

At the time of his termination, the employee had been employed for 30 years and was considered to have had a good employment record.

The employee’s Manulife file was admitted into evidence through the testimony of a Disability Claims Manager with Manulife. Although the earlier portion of the file was compiled by persons other than the witness, it was considered admissible on the basis of the rule in Ares v. Venner.

In Ares v. Venner, 1970 CanLII 5 (SCC), the rule had been formulated in the following terms:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses’ notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

The employee, who had been suffering from rheumatoid arthritis, testified that some days were good and others were not. The employer took objection to arbitral notice being taken of the proposition that the condition is “subject to flare-ups” or that the symptoms “fluctuate from time to time in their severity and pain”. After having reviewed various authorities dealing with “judicial notice”, the arbitrator concluded that he did not need to take judicial notice of the disputed proposition. He stated that while the question was relevant to the employer’s effort to impeach the employee on this point, the onus was on the employer to lead evidence regarding this aspect of the disease.

The arbitrator found that

the conclusion is inescapable that [the employee] was not frank about the totality of his activities and he was conscious of that lack of frankness … Particularly damaging to [the employee’s] overall truthfulness was that he did not volunteer that he had been snowmobiling because “he didn’t think anyone had seen him” so he did not tell them.

The arbitrator stated that there were at least three factors that softened the gravamen of a finding of dishonesty. Included was the arbitrator’s assessment that the employee was anxious to return to modified duties; that he considered the employee to have become depressed, with the result being he was presenting his condition in a very pessimistic manner and that the employer had chosen not to confront the employee with its full allegations and its surveillance evidence before it made the decision to terminate such a long-serving employee.

On this latter point, the arbitrator stated:

In my view, in these circumstances fairness required the Employer, at some point, to fully confront [the employee] and seek his explanation. My conclusions about the severity of [the employee’s] misconduct are tempered by the fact this did not occur. Had a full confrontation occurred it may have precipitated a misleading explanation or dissembling, but it may also have precipitated a confession or explanation.

The arbitrator concluded:

In summary, I find the Employer had just cause for discipline, but the nature of the cause is qualified by additional circumstances.

The decision was rendered more than three years after the employee had been terminated. The arbitrator rejected the employer’s contention that if a suspension is substituted for the termination, it should be a suspension to the date of termination, in other words, a suspension that was in effect at least three years in duration.  He noted that at the time of the termination, the employee was more likely than not unable to work in a safety-sensitive environment, and if that were true, he might have been entitled to remain on long-term disability but for the employer having intervened with the insurer. The arbitrator cited the Supreme Court of Canada’s decision in Alberta Union of Provincial Employees v. Lethbridge Community College [2004] SCR 727, where the Court stated:

For arbitration to be effective, efficient and binding, it must provide lasting, practicable solutions to workplace problems. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need for arbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration the whole of the circumstances. To rob arbitrators of access to the full breadth of the employment context risks impairing their role as final arbiters of workplace disputes. Arbitrators are well positioned on the front lines of workplace disputes to weigh facts and assess credibility as the circumstances warrant.

The arbitrator stated “that the employee’s situation needed to be assessed, not on the basis of assumptions, but as a result of objective expert testing. Once that is done, the parties will be better able to resolve, or this arbitrator better able to decide, on a final remedy.” The arbitrator directed that the employer provide particulars of accommodating work available in its workplace; that the employee provide “a medical opinion of his capacities and limitations both as of the date of termination, insofar as his medical practitioners can now ascertain, and as of now, if necessary. [The employee] may also be required to undergo a functional capacity evaluation. Each will be at the Employer’s expense. Thereafter, in a manner that complies with the three-way duty to accommodate disabilities, the parties shall meet and determine whether [any remaining disabilities that the employee may have] can be accommodated, without undue hardship, with the Employer, and if so, what that accommodation might be. These steps are to be accomplished within three months of the date of this award.”

The arbitrator also stated that he would retain jurisdiction over the issue of remedies. He further stated that once the assessments were accomplished, he would decide whether to set aside the termination and reinstate the employee, or alternatively, substitute some other remedy for the termination and any other losses that the employee had suffered. He noted that as an arbitrator, he had no authority to extend the time for an appeal to the insurer or to make any other award against the insurer directly.

The issue of surveillance evidence and accommodation are considered in Chapters 12 and 14 of the Illness and Absenteeism manual and its supplement.


B.     Recent Decisions of General Interest

1. An arbitrator refused to accept medical evidence setting forth an employee’s restrictions on the basis that the restrictions had been based on the self-reporting of an employee whose testimony lacked credibility.

In Sofina Foods Inc. (Lilydale Division), 2017 CanLII 39831 (AB GAA) (Chankasingh), the employee had suffered four work-related injuries. She was accommodated for a period of time, and during that accommodation, she was permitted to use the office entrance and the staff lunchroom for out-of-scope employees. As matters progressed, the employer determined, for practical business reasons, that injured hourly employees would now be required to use the entrance and lunch room for hourly employees. This required that the employee climb a flight of 27 stairs. The employee claimed that she was unable to do so.

The WCB arranged for an Independent Medical Examination. The Examiner concluded that there were no restrictions imposed on the employee with regard to climbing stairs. The employee subsequently disputed that she had been able to climb 30 stairs as set forth in her return to work plan.

The medical examinations conducted by the employee’s physicians contained restrictions regarding stair climbing. The latest restriction limited her to climbing five steps. This restriction was discounted by the arbitrator on the ground that it was based on the employee’s self-reporting:

Arbitrators are understandably sceptical about accepting medical statements which are based only on a patient’s self-reporting. For example, in Brampton (City) (2008), 174 L.A.C. (4th) 140 (MacDowell) [citation as corrected], the arbitrator concluded that the medical opinions of a family physician and a psychologist were not reliable evidence to establish a genuine medical problem since those opinions were based on their patient’s self-reporting:

However reluctant one might be to go behind the doctor’s signature or the doctor’s opinion, it seems to me that a document procured in these circumstances, provides little support for the legal finding I am asked to make – particularly when the evidence before me (but not, to be fair, before [the doctor]) casts considerable doubt on the [employee’s] general credibility when he has made up his mind about something. Because all that [the doctor] had to go on was what the [employee] told him, and that is not the case for present purposes. It is evident that I have a more complete picture than [the doctor] did, and unlike the doctor, I have to be more concerned about credibility and more mindful of manipulation.                                           …

From fairly early on the employer wanted objectively reliable medical information because it suspected – not unreasonably as it turned out – that it should not rely on what the [employee’s] own caregivers were saying, when it was based exclusively on what he was saying to them; and in my view there was nothing wrong with the employer’s quest for reliable and objective and independent medical information and the right to communicate with those doctors. Indeed, this is a textbook case of why Employers are sometimes right not to blindly rely upon what an employee’s family doctor has to say.

This is not to suggest that a statement from the employee’s physician is inherently unreliable, but only that doctors are as open to manipulation as anyone else, and that in a “rights-based world” employees have come to learn the value of these “medical trump cards.” And paradoxically, [the] more physicians are inclined to unquestionably support such claims, the more difficult it may be for workplace parties (and adjudicators) to sort out these types of questions. It leads to cynicism, not solutions. And it leads to litigation.

Arbitrator Chankasingh noted that both the hourly and staff  entrances involved more than five steps so that it was simply not possible for the employee to return to work in the plant given that restriction. Her grievances were dismissed.

Issues regarding the sufficiency of medical certificates are considered in sections 7:401 and 7:402 of the Illness and Absenteeism manual and its supplement.   


 2. Generally speaking, a deemed termination provision will apply, irrespective of the consequences, once the employer has established that the employee’s conduct fell within the ambit of the provision.

In Core-mark International Inc., 2017 CanLII 82902 (AB GAA) (Hornung), the employee was terminated after having travelled to Algeria to be with his ill sister. While the employer knew of his having made arrangements to travel, the employee had not sought written permission and had not kept the employer fully informed of his plans. The letter of termination stated that the employee’s actions amounted to job abandonment and that he was being terminated with cause.

The arbitrator addressed two issues:

(i) Did the employee’s termination fall within a deemed termination clause that stipulated that “any unreported absences of two (2) consecutive shift start times shall be considered a voluntary resignation due to job abandonment”, or alternatively, had the employee been dismissed on a disciplinary basis? and

(ii) Was the employee’s dismissal vitiated by reason of a violation of the employee’s right to representation pursuant to a clause that provided that any discipline meted out in such a case “shall be void from the beginning and cannot be re-implemented?”

Arbitrator Hornung commented that “as stated in Sealy Canada Ltd., 161 L.A.C. (4th) 391:

“Deemed” termination implies neither an exercise of the employer’s disciplinary authority, which would be subject to the just cause provision, nor an exercise of employer discretion, which would be subject at least to the standard that it not be arbitrary, discriminatory or in bad faith. It is a consequence of events rather than an event itself …”

The arbitrator then stated that the appropriate procedure was as set forth in St. Albert (City), 78 C.L.A.S. 94:

The Employer needs to present prima facie evidence that the clause in question applies.

The Union then has the ultimate burden of proving a breach of the agreement. The case not being disciplinary, there is no requirement to show just cause and there is no authority for the board to vary the penalty called for if the clause otherwise applies.

Once the employer established a prima facie case, the employee bore the onus to establish, on a balance of probabilities, that he had reported his pending absence or otherwise had it authorized. The employee failed to do so. The arbitrator commented that:

a request to be excused [from] work does not amount to the granting of such a request. The discretion – reasonably applied – to grant it lies with the employer irrespective of the reason behind the request … Similarly, providing an explanation for the possible need to be absent without any further specifics, does not amount to a reported absence as envisaged by [the clause].

The arbitrator then considered whether the Employer’s exercise of its discretion was reasonable in the circumstances. He relied on the decision of arbitrator Hope in BC Rail, (1985) 21 L.A.C. (3d) 257, where arbitrator Hope had stated:

Speaking hypothetically, it appears to me that the reason for the absence is irrelevant to the issue of reasonableness unless the reason also affords an explanation for the failure to obtain authorization. If, for instance, an employee was rendered incapable of seeking authorization or failed to obtain authorization due to some legitimate misunderstanding of the facts, a refusal to consider the explanation and the circumstances may be seen as unreasonable.

The employee had been previously disciplined for absenteeism and was familiar with the need to file a request for leave form – in that he had filed one in the past. Consequently, the employer’s discretion to invoke the provision, although harsh in the circumstances, cannot be said to have been unreasonable.

The arbitrator stated that the employer had met the onus of proving that the employee had missed two consecutive days without notice. “Accordingly, the deemed termination provision … must apply irrespective of the consequences.” In that regard, he accepted the logic of arbitrator Peltz in Parmalat Foods Inc. [88 C.L.A.S. 94], where arbitrator Peltz stated:

… Just cause review allows for all the circumstances to be considered and grants to an arbitrator the authority to substitute a lesser punishment. Nevertheless … deemed quit clauses are relatively common in modern collective agreements, and such provisions represent a mutual determination as to when the employer may terminate an employee outside the ambit of just cause. In the present case, [the clause] sets the mark at three days of absence without authorization. The [employer] is allowed to exercise its discretion. It may invoke a deemed resignation, which triggers drastic consequences, or it may choose alternative measures. … As noted by Arbitrator Bowman in the University of Manitoba C.A.I.M.A.W. award (cited above), once the absence is proven, it “is not a disciplinary case where an arbitrator has the right to ameliorate the decision of the Employer … Thus if I were to read into [the clause] additional degrees of proof and impose such a burden on the [employer] for the purpose of tempering the harshness of a deemed quit, I would be ignoring the plain words of the agreement and acting beyond my authority as an arbitrator.

The grievance was dismissed, with the arbitrator stating:

While I accept the position of the Union that the Employer did not engage in the kind of open disclosure that one would normally expect in cases involving the termination of an employee, that fact – [by itself] is insufficient to convert a deemed quit termination into a dismissal for cause or otherwise provide grounds to uphold the grievance in the circumstances of this case.”

The issue of deemed termination clauses is considered in section 16:300 of the Illness and Absenteeism manual and its supplement.


  3. An employee who was suffering from an addiction to alcohol and pain killers was found to have been improperly terminated for failing to report for work and for having been unresponsive to the employer’s requests for medical justification. The arbitrator stated that the employer should have considered disciplining the employee for having failed to advise of his pending absence while at the same time imposing a condition that the employee, prior to returning to work, provide a proper and fulsome account of his fitness to work along with a prognosis concerning his future attendance. 

In Jasper (Municipality), 2017 CanLII 62788 (AB GAA) (Sims), the employee, a heavy equipment operator, had been employed for about 17 months at the time of his termination. During that time, he had received a series of coaching letters outlining the employer’s expectations regarding his failure to attend at work and perform his expected duties. Included with these letters was a disciplinary letter of warning regarding the employee having requested to leave mid-shift due to intoxication and unfitness to work. The employer sought a medical report from the employee’s doctor concerning his fitness to work. The arbitrator characterized the doctor’s reply as being “less responsive and less helpful than it might have been.”

The employee’s termination was precipitated by the employee having missed work “without taking adequate and proper steps to notify [his] supervisor and to seek approval to be away on a scheduled day of work.” The termination letter further stated that the employee’s “purported explanation for failing to report [his] absence [was] less than candid and forthright.”

Subsequent to the employee’s termination, the employer was advised by the union that the employee was suffering from an addiction to both alcohol and pain killers. The union requested that the employer reinstate the employee on the condition that the employee agree to attend a residential treatment facility. Several weeks later, the union provided a letter from the employee’s doctor stating that the employee had “significant alcohol problems” and that efforts were being made to have him admitted to a residential treatment program.

At the hearing, the union submitted authorities for the proposition that a missed shift rarely justifies termination and that in circumstances having a medical component, the employer has an obligation to inquire where it suspects that medical issues may underlie performance issues.

The arbitrator’s award discussed the concept of progressive discipline and explored the difference between disciplinary and non-disciplinary coaching letters or letters of expectation.

The arbitrator addressed the employee’s alcohol-related disability and concluded that the employer should have dealt with it both from a disciplinary and a treatment perspective:

[The employer had earlier and] quite properly in the circumstances, and in a non-disciplinary way, asked the [employee] to have his physician  provide a report on his fitness for work, raising the dual, and for this job entirely valid concerns, of his health issues and their potential impact on the safety of the [employee] and others. It is unfortunate, and of little help to the [employee] or the Employer, that his doctor replied in an unhelpful and overly taciturn manner.

Given this knowledge, there is no doubt that, at least in the back of their minds, the management team viewed the [precipitating absence] as a recurrence of the [employee’s] drinking issues. That may well have been the case, although the evidence suggests it was probably more complex than that, with heavy prescription drugs or alcohol being taken not just through habit but as a form of inappropriate self-medication due to the pain caused [by] an attack of pancreatitis and the anxiety and panic that [it] precipitated.

The Employer’s approach … was to treat the absence as deliberate misconduct compounded by untruths. They spent little time, at least overtly, considering the impact of the [employee’s] disabilities and vulnerabilities on the hard facts of his not making proper contact, not showing up for work, and being unresponsive in the requests for medical justification.

Their task was exacerbated by the [employee’s] inexplicable failure to provide them with the doctor’s note [that he had obtained for his absence] although again that note was too summary to be very helpful in any event.

[The duty to accommodate a known or suspected disability] is a three-way duty involving the Union, the Employer and the [employee]. Despite a great deal being written about an Employer’s duty to explore, and an employee’s duty to cooperate, there is a point at which another reaction kicks in based on the adage about “leading a horse to water”. The Employer here felt that it had advised the [employee] of the availability of its Employee Assistance Program and, with little obvious success, encouraged him to continue taking treatment from his physician. By [the date of the employee’s termination], they clearly felt they had done enough, had met any duty to accommodate, and were at that point, … if the [employee] failed to help himself, or denied a problem, then termination was their only option.

It is at this point that the two issues merge. An option that would have addressed most of the legitimate interests involved would have been to suspend the [employee] from duty for a sufficient period to serve as punishment and a sufficient deterrent for his inappropriate conduct on [the day in question]. The Employer could, at the same time, have made it a condition of allowing the [employee] to return to work, that he provide a proper and fulsome account of his fitness for work and a prognosis for the future likelihood of the repetition of the events that appeared to have arisen on [that date]. Perhaps the [employee] would not have responded, but by putting the “progression” into its approach to discipline, they would have given the employee clear warning of the consequences of any failure to do so, before he was terminated.

If the [employee’s] albeit hazy account of [his absence] is correct, and truly involved  the occurrence of and an inappropriate reaction to an attack of pancreatitis, then this approach would have offered the Employer a fuller understanding of the [employee’s] medical restrictions and their ability to provide accommodation, or not if [that] proved unduly onerous.

While we understand the Employer’s frustration … the basic fact remains that the [employee’s] offence was missing a day’s work, failing to phone in appropriately and failure to give a clear account of why that happened. He had nothing but a written warning on his record. We agree with the Union’s assertion that this is not a situation where progressive discipline, with its advantages of fairness and warning, should give way to outright termination.

It is a secondary point, but the Employer’s knowledge of his medical issues should have led the Employer to give some more careful consideration to the likelihood that the absence had at least some connection to his disabilities. It did not do so. Given the lack of real progressive discipline and these related issues, we find the termination to be excessive in the circumstances justifying its being set aside under s 142 (2).

In accordance with the request of the parties, the matter of remedy was to be left to the parties to resolve.

The issue of imposing discipline for an employee’s refusal to provide medical information is considered in section 8:204 of the Illness and Absenteeism manual and its supplement.


 4. An employee who was terminated for having improperly disclosed a patient’s HIV status was reinstated with a one month suspension being imposed in place of the termination.   

In Alberta Health Services, 2017 CanLII 48395 (AB GAA) (Chankasingh), the employee had been terminated for having improperly disclosed a patient’s HIV status to her husband. The disclosure occurred in the context of her husband considering the patient as a possible tenant in a rental suite in their home. The ensuing investigation concluded that the employee had breached the employer’s Code of Conduct and Privacy Policy. The employee was terminated.

The employee, who had 16 years of service, had a clean disciplinary record. She was reinstated with a one month suspension imposed in place of the termination.

The issue of non-disclosure of confidential information is considered in sections 12:501 to 12:504 of the Illness and Absenteeism manual and its supplement.


5. The termination of an employee pursuant to a deemed termination clause was set aside on the basis that the employer had not taken any real issue with the bona fides of the employee’s absence and the medical notes that supported his absence. The employee was reinstated with compensation for all lost wages and benefits. The employee, who frequently worked overtime, was to have his overtime earnings recognized in calculating his damages.       

In ADM Milling, 2017 CanLII 59742 (AB GAA) (Sims), the employee was terminated as a result of his continuing absence.

The day before the employee’s absence commenced, he was advised by the employer that his brother was being terminated by the employer. Shortly after the start of that shift, the employee telephoned his supervisor to advise that he “was stressed out, not feeling well, and would like to go home.” He was given permission to do so.

The next day was a Friday. The employee called his supervisor prior to the start of his shift to say that he would like to have the day off as he still was not feeling well. The supervisor agreed.

On the Monday, the employee attended a walk-in-clinic. The doctor advised him to take two weeks off. The employee telephoned the supervisor from the doctor’s office. He had obtained a medical note and asked the supervisor if he wished to see it. He understood the supervisor to say that such was not necessary. However, when the employer had not received the medical note by the weekly Thursday manpower planning meeting that took place almost two weeks after the employee’s initial absence, management decided to terminate the employee on the basis that he was in breach of the collective agreement provision and the plant rules. The employee had moved, and although he stated that he had advised the employer of his new address, the termination letter was sent to his former address and was never received by the employee.

Without knowing of his termination, the employee visited the same doctor and was given another note authorizing him to be off work for a further two weeks. The employee left a message for his supervisor, but did not hear back from him. Consequently, he faxed both of the medical notes to his supervisor. The employee testified that he subsequently learned of his termination from his brother several days later. His brother had heard of it from another employee.

The arbitrator acknowledged that the employee was upset by the termination of his addicted brother who also worked for the employer. The employee had been working with the employer to have it grant a leave of absence to allow his brother to enter into a rehabilitation program, and he sensed that the employer had let both him and his brother down by not granting such a leave.

The employer relied on a collective agreement provision that stated that “an employee will lose his seniority rights and employment, and his name shall be removed from the Company seniority list [if the employee] is absent from work for 3 consecutive days without good cause or fails to notify the Company of his absence.”

The union contended that the employee did notify the employer and that he had good cause to be absent.

The employer’s secondary argument was that in any event it had just cause for termination because of the absence and the related failure to provide medical justification for that absence.

Management witnesses described the employee, aside from this absence, as a “valuable and hard-working employee who could be relied upon, and who freely worked overtime when the opportunity arose. He was described as a “go to guy.”

The arbitrator concluded that the employee did not provide the Employer with a basis for an automatic termination under the relevant provision of the collective agreement and that he did not fail to notify the employer of his absence

After having considered several “deemed termination” decisions submitted by the employer, the arbitrator stated that the employer had not “taken any serious issue with the bona fides of the [employee’s] obtaining medical leave. The doctor’s notes support the absences and no evidence was provided to undermine their validity. The Employer’s only substantive argument is that the [employee] failed to provide it with the medical notes in a timely way …” In answer to that assertion, the arbitrator found that the supervisor had simply said that the employee did not need to bring the note in “right away.”

The employee had made an effort to keep the employer informed. The termination was set aside and the employee was to be compensated for all lost wages and benefits. The arbitrator stated that the parties recognized that the employee habitually worked a considerable amount of overtime and that such was to be recognized in making the employee whole. The employee’s claim for damages for mental distress was rejected.

The issue of deemed termination clauses is considered in section 16:300 of the Illness and Absenteeism manual and its supplement.