Did employer have just cause to fire worker who went AWOL?
This instalment of You Make the Call looks at the case of a worker in Ontario who took four weeks of unauthorized vacation at the busiest time of the year for his employer.
Hafiz Alharazi was fired from his job as a glazier with Oran Industries Ltd., a manufacturer of vinyl windows in December 2005 after 13 years on the job.
On Feb. 7, 2005, Alharazi submitted a vacation request starting Nov. 17 and returning on Dec. 15. In a notice to Alharazi, the employer said the vacation request had not been granted “due to the fact that the time of year in which you have requested is normally the climax of our busy season. Under the terms of the collective agreement, it states vacation must be taken at such times as approved by the employer having regard to the need to maintain efficient operation. Your request can be reviewed as we approach the date specified.”
Alharazi normally worked from 7:15 a.m. to 3:45 p.m. He had no disciplinary record. While the plant employed six or seven glaziers, there were only two in his department.
Oran Industries is typically busiest from October to December. It usually has a two-week shutdown commencing on about Dec. 16 of each year. Many employees take their vacation during the shutdown.
Despite not getting approval, Alharazi went ahead and made travel arrangements in September. He was to leave Toronto for India on Nov. 16 with a return date of Dec. 18. Alharazi and his spouse were travelling to India to attend two family weddings and to spend time visiting, as he had not been there in more than a decade.
On Oct. 23 (according to Alharazi) or on Nov. 14 (according to the employer), Alharazi reminded his employer that he was going on vacation. According to Alharazi, his supervisor told him, “ Do what you have to do.” According to the supervisor, Alharazi said, “You know I’m leaving,” to which he replied, “Do what you want, but keep in mind you’re doing it without permission.”
Regardless, it was clear Alharazi understood that the employer had not granted permission for him to be absent from work. At no time did he ask the employer to review his request as it said he could when it initially rejected it. Nor did he submit an amended request.
His last day of work was Nov. 15. He did not attend work, or even call in on Nov. 16, despite the fact his original vacation hadn’t even included that day.
The collective agreement stated that an employee’s seniority and employment shall be deemed to be terminated if the worker is absent without permission for a period of three consecutive scheduled working days without notifying his immediate supervisor.
The employer said the termination was justified, and the arbitrator couldn’t interfere because the collective agreement was clear and specific about the penalty for what Alharazi did. The union argued termination was too severe for an employee with 13 years’ seniority and a clean record.
You make the call
• Was the employer justified in firing the worker?
OR
• Should the arbitrator substitute a lesser penalty?
If you said the employer was justified in firing Alharazi, you’re correct. The arbitrator said that if a collective agreement contains a specific penalty for specified conduct, an arbitrator has no jurisdiction to alter that penalty under Ontario’s Labour Relations Act.
There was no doubt Alharazi was absent without permission for more than three working days — he was gone more than four weeks. It was also clear Alharazi knew he didn’t have permission. Therefore, under the terms of the collective agreement, the employer had the authority to fire him.
For more information see:
• Oran Industries Ltd. v. U.S.W.A., 2006 CarswellOnt 7000 (Ont. Arb. Bd.)
Hafiz Alharazi was fired from his job as a glazier with Oran Industries Ltd., a manufacturer of vinyl windows in December 2005 after 13 years on the job.
On Feb. 7, 2005, Alharazi submitted a vacation request starting Nov. 17 and returning on Dec. 15. In a notice to Alharazi, the employer said the vacation request had not been granted “due to the fact that the time of year in which you have requested is normally the climax of our busy season. Under the terms of the collective agreement, it states vacation must be taken at such times as approved by the employer having regard to the need to maintain efficient operation. Your request can be reviewed as we approach the date specified.”
Alharazi normally worked from 7:15 a.m. to 3:45 p.m. He had no disciplinary record. While the plant employed six or seven glaziers, there were only two in his department.
Oran Industries is typically busiest from October to December. It usually has a two-week shutdown commencing on about Dec. 16 of each year. Many employees take their vacation during the shutdown.
Despite not getting approval, Alharazi went ahead and made travel arrangements in September. He was to leave Toronto for India on Nov. 16 with a return date of Dec. 18. Alharazi and his spouse were travelling to India to attend two family weddings and to spend time visiting, as he had not been there in more than a decade.
On Oct. 23 (according to Alharazi) or on Nov. 14 (according to the employer), Alharazi reminded his employer that he was going on vacation. According to Alharazi, his supervisor told him, “ Do what you have to do.” According to the supervisor, Alharazi said, “You know I’m leaving,” to which he replied, “Do what you want, but keep in mind you’re doing it without permission.”
Regardless, it was clear Alharazi understood that the employer had not granted permission for him to be absent from work. At no time did he ask the employer to review his request as it said he could when it initially rejected it. Nor did he submit an amended request.
His last day of work was Nov. 15. He did not attend work, or even call in on Nov. 16, despite the fact his original vacation hadn’t even included that day.
The collective agreement stated that an employee’s seniority and employment shall be deemed to be terminated if the worker is absent without permission for a period of three consecutive scheduled working days without notifying his immediate supervisor.
The employer said the termination was justified, and the arbitrator couldn’t interfere because the collective agreement was clear and specific about the penalty for what Alharazi did. The union argued termination was too severe for an employee with 13 years’ seniority and a clean record.
You make the call
• Was the employer justified in firing the worker?
OR
• Should the arbitrator substitute a lesser penalty?
If you said the employer was justified in firing Alharazi, you’re correct. The arbitrator said that if a collective agreement contains a specific penalty for specified conduct, an arbitrator has no jurisdiction to alter that penalty under Ontario’s Labour Relations Act.
There was no doubt Alharazi was absent without permission for more than three working days — he was gone more than four weeks. It was also clear Alharazi knew he didn’t have permission. Therefore, under the terms of the collective agreement, the employer had the authority to fire him.
For more information see:
• Oran Industries Ltd. v. U.S.W.A., 2006 CarswellOnt 7000 (Ont. Arb. Bd.)
