Machine operator at auto parts manufacturer TRW Canada fired
A machine operator at an auto parts manufacturer was fired under the deemed termination provisions in the collective agreement after the employer judged him to be AWOL.
D.L. was employed as a machine operator at TRW Canada Limited. He also served as an area representative for the union. D.L. was hired in 1994. Previous discipline did not factor into his termination on May 25, 2012.
At the end of February 2012, D.L. and other members of the union’s executive booked union leave to prepare for upcoming contract negotiations.
While on union leave during negotiations, members of the executive were entitled to claim compensation for overtime opportunities that they had missed because they were on leave. D.L. made claims for overtime on six days from March 12-18. Members of the union executive who were absent from negotiations while on union leave were required to follow the regular absence reporting procedures according to the terms set out in the collective agreement.
D.L. was absent for 33 consecutive days during the 2012 negotiations between March 8 and April 23. D.L. provided proper notification for only 11 of those absences. D.L. was called in to two separate meetings in March to discuss his absenteeism. He was a no-show.
D.L. did attend a meeting on April 23. He explained then that he was not of sound mind and that he was going through a bad patch. He said he was seeing a doctor and that he was waiting to see a specialist. However, he provided no documentation. D.L. was suspended indefinitely.
Chance encounter
D.L. was to attend another meeting on May 16. He missed that meeting too. He was fired. The union grieved.
At arbitration, D.L. testified he had fallen into a depressive state after a chance encounter with his ex-wife and his two daughters with whom he had had no contact in a number of years.
Based on his doctor’s assessment of severe depression, anxiety and fatigue, D.L. applied for short-term disability benefits on May 8. One month later, D.L. underwent a psychiatric assessment. D.L. was identified as exhibiting “a character logical disturbance marked by passive aggressiveness, self-sabotage and lack of emotional awareness.”
D.L. subsequently began Dialectical Behavioural Therapy in a Borderline Personality Disorder group therapy program.
The employer said the termination was justified. D.L. was AWOL for more than five consecutive days. He was subject to the deemed termination provisions in the collective agreement. D.L. was aware he was required to notify the employer if he was going to be absent from his designated union duties.
The employer also argued that because D.L. had been fired according to the deemed termination provisions in the contract rather than for a disciplinary matter, the Arbitrator had no statutory discretion to alter the penalty.
Borderline personality disorder
The union said D.L.’s absences may have constituted an abuse of union leave, but he was not AWOL.
In any event, the union said, to use the deemed termination provisions to fire a worker who had become disabled was discriminatory under the Ontario Human Rights Code. The medical assessments showed that D.L. was suffering from a major depression and that his judgment was impaired by a borderline personality disorder. The employer was required to accommodate D.L. up to the point of undue hardship, the union said.
The arbitrator agreed. D.L. was AWOL but there was a nexus or connection between his disability and the behaviour that got him fired.
D.L.’s behaviour over the spring demonstrated clear manifestations of his borderline personality disorder, the arbitrator said. D.L. showed poor coping skills, self-sabotage and a tendency to flee from pressing issues. He acted irrationally and in a manner that was antithetical to his own self-interest. D.L. was a long-service employee who suddenly began acting erratically.
Sometimes he booked off his absences. Then he was AWOL. He booked for overtime and then he was a no-show at meetings.
“It is my determination, therefore, that the evidence established that there is a sufficient nexus between the grievor’s aberrant behaviour of not following the appropriate protocol for reporting his absences and his borderline personality disorder and that his disability was a significant cause for the grievor being AWOL. Accordingly, the termination of the grievor by the operation of Article 10.20 (d) [the deemed termination provisions] of the collective agreement, therefore, constituted prima facie discrimination under the Code.”
D.L. was ordered reinstated. However, the reinstatement was conditional upon D.L. completing a prescribed course of therapy and that he comply with the required absence reporting protocols.
Reference: TRW Canada Limited and Thompson Products Employees’ Association. Brian Sheehan — Sole Arbitrator. Paul Young for the Employer. Sean Fitzpatrick for the Union. Nov.16, 2012. 49pp.
D.L. was employed as a machine operator at TRW Canada Limited. He also served as an area representative for the union. D.L. was hired in 1994. Previous discipline did not factor into his termination on May 25, 2012.
At the end of February 2012, D.L. and other members of the union’s executive booked union leave to prepare for upcoming contract negotiations.
While on union leave during negotiations, members of the executive were entitled to claim compensation for overtime opportunities that they had missed because they were on leave. D.L. made claims for overtime on six days from March 12-18. Members of the union executive who were absent from negotiations while on union leave were required to follow the regular absence reporting procedures according to the terms set out in the collective agreement.
D.L. was absent for 33 consecutive days during the 2012 negotiations between March 8 and April 23. D.L. provided proper notification for only 11 of those absences. D.L. was called in to two separate meetings in March to discuss his absenteeism. He was a no-show.
D.L. did attend a meeting on April 23. He explained then that he was not of sound mind and that he was going through a bad patch. He said he was seeing a doctor and that he was waiting to see a specialist. However, he provided no documentation. D.L. was suspended indefinitely.
Chance encounter
D.L. was to attend another meeting on May 16. He missed that meeting too. He was fired. The union grieved.
At arbitration, D.L. testified he had fallen into a depressive state after a chance encounter with his ex-wife and his two daughters with whom he had had no contact in a number of years.
Based on his doctor’s assessment of severe depression, anxiety and fatigue, D.L. applied for short-term disability benefits on May 8. One month later, D.L. underwent a psychiatric assessment. D.L. was identified as exhibiting “a character logical disturbance marked by passive aggressiveness, self-sabotage and lack of emotional awareness.”
D.L. subsequently began Dialectical Behavioural Therapy in a Borderline Personality Disorder group therapy program.
The employer said the termination was justified. D.L. was AWOL for more than five consecutive days. He was subject to the deemed termination provisions in the collective agreement. D.L. was aware he was required to notify the employer if he was going to be absent from his designated union duties.
The employer also argued that because D.L. had been fired according to the deemed termination provisions in the contract rather than for a disciplinary matter, the Arbitrator had no statutory discretion to alter the penalty.
Borderline personality disorder
The union said D.L.’s absences may have constituted an abuse of union leave, but he was not AWOL.
In any event, the union said, to use the deemed termination provisions to fire a worker who had become disabled was discriminatory under the Ontario Human Rights Code. The medical assessments showed that D.L. was suffering from a major depression and that his judgment was impaired by a borderline personality disorder. The employer was required to accommodate D.L. up to the point of undue hardship, the union said.
The arbitrator agreed. D.L. was AWOL but there was a nexus or connection between his disability and the behaviour that got him fired.
D.L.’s behaviour over the spring demonstrated clear manifestations of his borderline personality disorder, the arbitrator said. D.L. showed poor coping skills, self-sabotage and a tendency to flee from pressing issues. He acted irrationally and in a manner that was antithetical to his own self-interest. D.L. was a long-service employee who suddenly began acting erratically.
Sometimes he booked off his absences. Then he was AWOL. He booked for overtime and then he was a no-show at meetings.
“It is my determination, therefore, that the evidence established that there is a sufficient nexus between the grievor’s aberrant behaviour of not following the appropriate protocol for reporting his absences and his borderline personality disorder and that his disability was a significant cause for the grievor being AWOL. Accordingly, the termination of the grievor by the operation of Article 10.20 (d) [the deemed termination provisions] of the collective agreement, therefore, constituted prima facie discrimination under the Code.”
D.L. was ordered reinstated. However, the reinstatement was conditional upon D.L. completing a prescribed course of therapy and that he comply with the required absence reporting protocols.
Reference: TRW Canada Limited and Thompson Products Employees’ Association. Brian Sheehan — Sole Arbitrator. Paul Young for the Employer. Sean Fitzpatrick for the Union. Nov.16, 2012. 49pp.
