AH – 386
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
GRIEVANCE RE DAVID MACLEAN
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
M. D. Failes - Counsel, Toronto
B. F. Weinert - Director, Labour Relations, Toronto
R. Slugocki - Area Terminal Manager, Pickering
And on behalf of the Union:
D. Ellickson - Counsel
D. Graham - Division Vice-President, Regina
D. MacLean - Grievor
A hearing in this matter was held in Montreal on Thursday, 11 August 1994.
The material before the Arbitrator establishes that Mr. MacLean, an employee of some three years’ service to the Company at the time of his termination, booked off work due to illness in November of 1993. Mr. MacLean reported back for work in February 1994, at which time he was interviewed with respect to his absence. The record discloses that medical documentation submitted in support of Mr. MacLean’s absence included a doctor’s note to the effect that he would be fit to return to work on November 8, 1993. Mr. MacLean takes the position that that was an error, and according to his evidence he remained under the care of his doctor for stress and stomach ulcers, as well as the care of a counsellor, for the entire period of his absence from November through March.
As a result of the interview held with the grievor the following letter, dated March 4, 1994, was sent to him:
Results of investigative interview held in connection with being absent from work without proper notification.
It is the responsibility of a fulltime employee to keep regular contact with their immediate supervisor as to their status and the availability to work. From the documentation presented at the interview the last time you were seen by a physician (SunLife form) was November 2, 1992 where the doctor indicated you were fit to return on November 8, 1993.
From this date the communication is unclear and vague at best, until the phone call to Danny Blanchard on February 7, 1994 advising you are ready to return to work and submitted doctors note stating return to work February 11, 1994.
This does not explain nor cover your absence from November 8 to this date, the contacts you claim to have made through to Obico and your brother could not be verified although my understanding was some contact was attempted. Upon receipt of this letter you are to contact Peter Arlauskas to avail yourself for any work or hours that are available, and keep in contact thereafter. Remember, it is the responsibility of the employee to keep in regular contact with his workplace, relying on a fellow employee to relay the message does not absolve the employee of the responsibility.
Please govern yourself accordingly in the future.
Area Terminal Manager
There is some divergence in the evidence as to what transpired at the investigative interview which is the subject of the above letter. The Company submits that Mr. Slugocki and Union representative Hal Tryhorn agreed that the grievor’s return to work would be conditional upon his providing a medical certificate to confirm that he was under his doctor’s care during the period from November 8, 1993 until March 4, 1994. It does not appear disputed, however, that that condition was not communicated to Mr. MacLean initially. According to his account, he was later advised by Mr. Tryhorn that he should provide further medical documentation, but that it would be at his option. It appears from the evidence given by Mr. MacLean at the hearing that he then had concerns that the Company’s supervisors were seeking to gain confidential information about the details of his illness, which he did not feel that he should be obliged to disclose.
Mr. MacLean relates that following the letter of March 4, 1994, as instructed, he contacted Mr. Peter Arlauskas to inquire as to when he could return to work, at which time he was told that Mr. Slugocki was away on vacation, and he must await further instructions. It would seem that in the time between March 9 and March 23, 1994 there was telephone contact between the grievor and Mr. Slugocki, during which Mr. Slugocki impressed upon Mr. MacLean the need to obtain a medical certificate to cover the time period described above. When nothing more was heard from Mr. MacLean a letter was addressed to him by Mr. Slugocki on April 11, 1994 advising that if he was not heard from within seven days he would be presumed to be no longer interested in working for the Company and his file would be closed. Receiving no response to that letter the Company issued a further letter on April 25, 1994 advising Mr. MacLean that his employment was terminated. There is some uncertainty as to when the grievor received the letters sent to him by the Company, but it does not appear disputed that when he attempted make a telephone call to Mr. Slugocki in response to the letter of April llth, Mr. Slugocki advised him that it was too late and that he was already terminated, as was subsequently confirmed in the letter of April 25th.
Counsel for the Company submits that the case reveals a course ofconduct on the part of Mr. MacLean consistent with an employee unwilling or unable to fulfil his obligation to his employer in respect of being available for work or, alternatively, providing full information as to his reasons for being unavailable, including reasonable medical documentation pertaining to the period of any illness. Counsel points to the fact that the grievor had been issued a warning letter on July 9, 1993 following an investigative interview for an incident of absenteeism in July of 1993.
The Arbitrator can appreciate the concerns of the Company. It does not appear disputed that Mr. MacLean allowed a substantial period of time to elapse without providing the documentation requested by his employer. I am satisfied that the request was reasonable, particularly in light of the indication in the earlier medical documentation suggesting that he would be fit to return to work on November 8, 1993. By the same token, however, I am not persuaded that the actions of Mr. MacLean were in bad faith or out of a gross disregard for his employer’s interests. I am satisfied that he did have a legitimate concern about the nature of the information being requested, and may well have had an honest misunderstanding as to what was being asked of him. In this regard it is noteworthy, as Counsel for the Union points out, that the letter of March 4, 1994 outlining the conditions for Mr. MacLean’s return to work does not specify that a further medical certificate would be required. That is not to say that the Company was not entitled to demand one, however, in light of the facts available. The letter does, however, lend some support to there being some confusion in the mind of the employee.
In all of the circumstances the Arbitrator is satisfied that the termination of the employee’s services is an excessive consequence, particularly if one accepts the evidence which he gave at the hearing to the effect that he now possesses a medical certificate confirming that he was under the care of his physician during the entire period which is of concern to the Company. In the result, I am satisfied that this is an appropriate case for a reinstatement, but without compensation, and on conditions which will protect the legitimate interests of the employer. The Arbitrator therefore directs that the grievor be reinstated into his employment, without compensation for wages and benefits lost, and without loss of seniority. Mr. MacLean’s reinstatement shall be conditioned upon his first providing to the Company a medical certificate confirming that he was under the care of his physician and/or a professional counsellor for the period between November 1993 and March 1994. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.
Signed at Montreal, 11 August 1994
(signed) MICHEL G. PICHER