Worker ‘chose to absent himself’ without consent: Arbitrator
Despite being told he couldn’t take time off when he requested, a worker at Ryam Tembec lumber in Northern Ontario took five days off without permission.
David Graham began work with the employer on Aug. 21, 2015, initially as a fill-in worker but eventually as a full-time employee with the company.
On March 7, 2018, Graham asked Pierre Bouchier, sawmill supervisor, for unpaid time off to care for an ailing family member. On the form, Graham marked “personal” under the reason for leave. Graham wanted to be off work for five days, beginning on April 30.
The form was returned and Bouchier asked Graham for a more detailed reason for the absence. But Graham refused to give more information, other than it was to support a family member who lived out of town.
During an April 16 meeting, it was determined Graham needed to ask for family-caregiver leave, which required medical proof that the family member was suffering from a “serious medical condition.”
Graham said the family member didn’t have a “serious” condition but that he still wanted to take family-caregiver leave.
On April 25, Brett Demers, HR superintendent, wrote an email to Denis Cloutier, customer service and technical superintendent: “If he is now requesting a different leave under the ESA (Employment Standards Act), please have him confirm which one so that the company can look at the requirements of that leave and let him know that otherwise we are not able to approve his leave for next week.”
Cloutier met with Graham the following day but Graham refused to submit a new form.
Graham said he would submit a doctor’s note after his leave was completed.
On April 27, Cloutier delivered another letter to Graham from Demers: “David, this letter will confirm that we require a written request for your family-caregiver leave and a medical certificate as indicated in the guidelines.”
Graham was warned that his leave would not be approved if he didn’t complete a new form and if he didn’t show up for work, he would be considered AWOL (absent without official leave).
About 20 minutes later, testified Cloutier, Graham visited his office and claimed the company was engaging in harassment and he would take the matter up with the labour relations board.
Graham didn’t show up for work the week of April 30. When he returned to the yard on May 7, his employment was terminated.
“Your actions have shown a complete disregard to everyone who got involved in trying to manage the situation and ultimately to the company. Furthermore, not only were you AWOL, you have shown that we are not able to trust you to be forthcoming and honest,” said the letter of dismissal.
Graham did have a doctor’s note that day, but it was considered too late. As well, another letter was produced at the arbitration hearing.
The union, the United Steel Workers (USW), Local 1-2010, grieved the decision.
Arbitrator Tatiana Wacyk dismissed the grievance.
“Although advised that, in the absence of a written-leave request, he was to attend at work the week of April 30, 2018, and that he would be considered AWOL if he did not, (Graham) chose to absent himself without providing the written request. Accordingly, I find (Graham) was absent without permission, for reasons that were not beyond his control.”
Because Graham didn’t produce the medical forms “as soon as possible,” as required under the ESA, he didn’t meet the proper requirement for leave to be authorized.
“From April 16, 2018, when advised a medical certificate was necessary to qualify for family-caregiver leave, until April 27, 2018, when he left for his leave, to produce the certificate, he failed to do so,” said Wacyk
“As set out above, (Graham) has not met the requirements to qualify for family-caregiver leave. As a result, he is not entitled to the section-74 protections afforded to employees who are exercising a right under the act,” said Wacyk.
Reference: Ryam Tembec and United Steel Workers, Local 1-2010. Tatiana Wacyk — arbitrator. Michelle Henry for the employer. Jim Fyshe for the employee. Oct. 10, 2018. 2018 CarswellOnt 16678
David Graham began work with the employer on Aug. 21, 2015, initially as a fill-in worker but eventually as a full-time employee with the company.
On March 7, 2018, Graham asked Pierre Bouchier, sawmill supervisor, for unpaid time off to care for an ailing family member. On the form, Graham marked “personal” under the reason for leave. Graham wanted to be off work for five days, beginning on April 30.
The form was returned and Bouchier asked Graham for a more detailed reason for the absence. But Graham refused to give more information, other than it was to support a family member who lived out of town.
During an April 16 meeting, it was determined Graham needed to ask for family-caregiver leave, which required medical proof that the family member was suffering from a “serious medical condition.”
Graham said the family member didn’t have a “serious” condition but that he still wanted to take family-caregiver leave.
On April 25, Brett Demers, HR superintendent, wrote an email to Denis Cloutier, customer service and technical superintendent: “If he is now requesting a different leave under the ESA (Employment Standards Act), please have him confirm which one so that the company can look at the requirements of that leave and let him know that otherwise we are not able to approve his leave for next week.”
Cloutier met with Graham the following day but Graham refused to submit a new form.
Graham said he would submit a doctor’s note after his leave was completed.
On April 27, Cloutier delivered another letter to Graham from Demers: “David, this letter will confirm that we require a written request for your family-caregiver leave and a medical certificate as indicated in the guidelines.”
Graham was warned that his leave would not be approved if he didn’t complete a new form and if he didn’t show up for work, he would be considered AWOL (absent without official leave).
About 20 minutes later, testified Cloutier, Graham visited his office and claimed the company was engaging in harassment and he would take the matter up with the labour relations board.
Graham didn’t show up for work the week of April 30. When he returned to the yard on May 7, his employment was terminated.
“Your actions have shown a complete disregard to everyone who got involved in trying to manage the situation and ultimately to the company. Furthermore, not only were you AWOL, you have shown that we are not able to trust you to be forthcoming and honest,” said the letter of dismissal.
Graham did have a doctor’s note that day, but it was considered too late. As well, another letter was produced at the arbitration hearing.
The union, the United Steel Workers (USW), Local 1-2010, grieved the decision.
Arbitrator Tatiana Wacyk dismissed the grievance.
“Although advised that, in the absence of a written-leave request, he was to attend at work the week of April 30, 2018, and that he would be considered AWOL if he did not, (Graham) chose to absent himself without providing the written request. Accordingly, I find (Graham) was absent without permission, for reasons that were not beyond his control.”
Because Graham didn’t produce the medical forms “as soon as possible,” as required under the ESA, he didn’t meet the proper requirement for leave to be authorized.
“From April 16, 2018, when advised a medical certificate was necessary to qualify for family-caregiver leave, until April 27, 2018, when he left for his leave, to produce the certificate, he failed to do so,” said Wacyk
“As set out above, (Graham) has not met the requirements to qualify for family-caregiver leave. As a result, he is not entitled to the section-74 protections afforded to employees who are exercising a right under the act,” said Wacyk.
Reference: Ryam Tembec and United Steel Workers, Local 1-2010. Tatiana Wacyk — arbitrator. Michelle Henry for the employer. Jim Fyshe for the employee. Oct. 10, 2018. 2018 CarswellOnt 16678
