(the “Company”)







(the “Union”)







Sole Arbitrator:                       Michel G. Picher




Appearing For The Union:

            M. A. Church                     – Counsel, Toronto

            J. Robbins                           – General Chairman, Sarnia

            J. Surgenor                         – Grievor



Appearing For The Company:

            F. O’Neill                           – Manager, Labour Relations, Toronto

            D. Gagné                            – Sr. Manager, Labour Relations, Montreal






A hearing in this matter was held in Montreal on Tuesday, November 24, 2009.



            The Union contests the assessment of fifteen demerits against the grievor for attendance difficulties. The joint statement of issue reflects the nature of the dispute in the following terms:



Assessment of 15 demerits to Helper Yard Jeffrey Surgenor.



On December 24, 2007, Helper Yard Surgenor was required to attend a Company investigation in connection with circumstances surrounding: “alleged attendance management violation for period between Sept 22 and Nov 17, for amount of sick days taken during this time”.


Mr. Surgenor, subsequent to the investigation, was assessed 15 demerits.


It is the Union’s position that the discipline assessed, in consideration of all of the factors relating to this matter, was unwarranted and in any event, too severe. The Union is requesting the removal of the discipline from Mr. Surgenor’s record. In the alternative, the Union requests that such discipline be commensurate with the incident.


The Company disagrees.


            The record reveals that on December 24, 2007, the Company conducted an investigation of the grievor for his “… alleged attendance management violation for period between Sept. 22 and Nov. 17, for amount of sick days taken during this time.” Shortly following the investigation, on January 1, 2008 the Company assessed fifteen demerits against the grievor for his violation of the Attendance Management Policy between the dates in question.


            The Arbitrator can understand the Company’s concern. It does not appear disputed that within a four week period between the 22nd of September and the 17th of November the grievor booked sick on four separate occasions for a total of ten days. Notably, his absences all fell on or next to weekends. The record reveals that on at least one prior occasion the grievor, who has only two years of service, was previously assessed demerits for missed calls in July of 2007.


            However, it is important to bear in mind that this is a matter of discipline, in respect of which the Company bears the onus of proof. There is no principle of which the Arbitrator is aware which would justify an employer assessing discipline against a employee for being absent by reason of bona fide illness or injury. It is, of course, open to an employer to prove that an employee’s claim of illness is in fact false. That conclusion can sometimes be made out on the basis of an inference, for example, where an employee who is required to produce a medical certificate fails to do so, or does so in a way or in a form which is highly doubtful.


            None of those considerations come to bear in the case at hand. While the collective agreement might give to the Company the ability to require that the grievor provide medical evidence in support of his absences due to illness, it chose not to do so. Significantly, it appears that part of the grievor’s absence, between September 23 and October 1, 2007, was occasioned by an on-duty injury to his ankle which required him to wear an air cast and to abstain from walking on his ankle for approximately two weeks. The grievor also offered explanations for his being sick on October 11 and October 22, and explained that he aggravated a back injury which occasioned his absence on November 16, 2007.


            The Company offers no evidence to rebut or undermine any of these assertions by the grievor. Further, as noted above, it did not require him to produce any medical certificates in relation to these absences.


            The Company’s representatives stress that its attendance policy indicates that there will be intervention with an employee who records more than one day of absence in a twenty-eight day period. It is obviously open to the Company to “intervene” where an employee has been absent for more than one occasion over a twenty-eight day period. Intervention, however, can take many forms, including counselling and other measures short of discipline. When the Company decides to move into the area of imposing discipline it must appreciate that it will bear the burden of proof to establish that a person was not in fact ill on the occasion of an absence for which illness or injury is claimed.


Intervention can also take another form. For example, the accumulation of a large number of absences over a period of time, albeit innocent absenteeism presumably for a legitimate issue of illness, may justify the termination of that employee’s services if it can be demonstrated that the employee is in all likelihood incapable of maintaining a rate of attendance comparable to that of other employees in his or her workplace. Intervention at that point can be a warning to the employee or, in an extreme case, notice of his or her termination for an unacceptable rate of innocent absenteeism. However, to the extent that the Company would impose discipline merely for an employee having been ill, without adducing supporting evidence other than the mere fact of recurring absences, will generally not be sufficient to discharge the burden of proof necessary to sustain the assessment of discipline.


            In the case at hand the evidence does not sustain the position taken by the Company to the effect that the grievor was deserving of any discipline. The grievance must therefore be allowed. The Arbitrator directs that the fifteen demerits assessed against Mr. Surgenor be removed from his record forthwith.



Dated at Ottawa this 30th  day of November 2009.