Discipline and Discharge - Stewart McKelvey

Discipline and Discharge The grievor had never seen a copy of was directed to sign documentation required tothe charges before the hearing and was ensure requisite reimbursement payments wereunaware of how quickly charges were withheld at source.accumulating for even relatively briefcalls.Maple Leaf Sports and Entertainment andTeamsters Local Union 847 (Wayne Nichols)Mitigating factors included the following:What happened: Grievor terminated pursuant to The grievor was 50 years of age and a “deemed termination clause” in the collectivehad over 20 years of service;agreement. The grievor was employed with theemployer on a part-time basis. The collective He accepted his obligation to reimburse agreement required him to work a certainthe employer (although attempts atamount over a one-year period to maintain hisrepayment were unsuccessful);employment. He received a warning at the sixmonthmark that his absence percentage He expressed remorse and didn’tcalculation was below the threshold required tochallenge the employer’s calculation;avoid the deemed termination clause of theandcollective agreement. The grievor called in sickdue to a headache the day before year-end. This The reasons for the calls weren’twas included in the calculation and the deemedfrivolous.termination provision was triggered. The grievorPoints counting against the grievor included the grieved on the basis that the sick day should notfollowing:count against him as he had a doctor’s note.The arbitrator noted that in the collective He continued to make outgoing longagreement the parties had agreed that absencesdistance calls after agreeing not to do due to serious illness or bereavement wouldn’tso.be included in the calculation of the percentageabsence rate under the deemed terminationThe arbitrator found that although the grievor clause. The employer argued that a headachehad engaged in serious misconduct, there were wasn’t a serious illness as set out in theinsufficient grounds to justify discharge in the collective agreement.circumstances. There were no issues withrespect to how the grievor performed his duties. What the arbitrator said: Reinstated. TheThe misconduct didn’t have a direct relationship arbitrator applied the provision of theto his suitability for the particular job performed. Employment Standards Act which referred toThe arbitrator rejected the submission that “personal illness”, not serious illness anddemotion was a suitable penalty. He also found precluded the employer from including the sickthat reinstatement without back pay would be day in the absence percentage calculation. Atoo harsh and disproportionate and reinstated recalculation then dropped the grievor’ssubject to a six-month suspension. The grievor- 10 -