IN THE MATTER OF AN ARBITRATION
- and -
THE INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS
GRIEVANCE OF S. S. NAGRA
SOLE ARBITRATOR: Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – Executive Secretary, Shopcraft Unions
D. Mancini – President & Treasurer, Firemen & Oilers
APPEARING FOR THE COMPANY:
A.Y. de Montigny – Supervisor, Personnel & Labour Relations, Montreal
A. Langlois – Works Manager, Ogden Shops, Calgary
J. E. Narain – Personnel Development Officer, Ogden Shops, Calgary
D. J. David – Labour Relations Officer, Montreal
A hearing in this matter was held in Montreal on November 8, 1989.
This is a grievance against discharge. The Union submits that the Company did not have just cause for the termination of Mr. S.S. Nagra, from his position as a labourer employed at the Ogden Shops on February 23, 1988. The Company maintains that the grievor’s termination was justified by reason of his unacceptable rate of innocent absenteeism.
At the hearing the parties filed the following statement of dispute, joint statement of fact and joint statement of issue:
Closing of record of Labourer, Mr. S.S. Nagra, formerly employed at Ogden Shops in Calgary.
JOINT STATEMENT OF FACT:
On March 2, 1988, Mr. A. Langlois, Works Manager, Ogden Shops wrote to Mr. Nagra and stated in part:
"You were spoken to by the Personnel Development Officer and myself regarding your inability to attend work on a regular basis, and you promised that you would improve your attendance. Unfortunately, you did not live up to your promises to the Company, therefore, we have no other alternative but to close your record with the Company, in that it has clearly been established that you are not able to live up to your employment obligations for various reasons. In essence since the beginning of your employment relationship with CP Rail, you have been absent from work over 60% of the time, which is totally unacceptable in any industrial environment. Your record was closed on February 23, 1988."
JOINT STATEMENT OF ISSUE:
It is the Union’s position that Mr. Nagra has been terminated without just cause and that he should be reinstated and compensated for all lost wages and benefits.
The Company denies the claim.
The material facts are not in dispute. The grievor entered Company service as a Labourer on August 4, 1981, occupied the position of Carman Helper for a period between 1981 and 1982 and reverted to the position of Labourer, which he held at the time of his discharge, when he was assigned to the Ogden Shops at Calgary. From the outset of his employment, Mr. Nagra registered an extraordinarily high rate of absenteeism. The following table reflects his absences from work from the time of his employment to the date of his termination:
YEAR DAYS ABSENT
1981 (From August 4, 1981) 17 days
1982 118 days
1983 92 days
1984 78 days
1985 286 days
1986 292 days
1987 283 days
1988 (Jan. 1/88, Feb. 22/88) 33 days
TOTAL 1199 DAYS
By the Union’s own account, the grievor registered a rate of absenteeism of some 50 percent over his six and one half years of employment. As the Company stresses, the situation was substantially aggravated between 1985 and the date of his termination, for which time it assesses his rate of absenteeism at 78.5 percent, based on calendar days.
In 1981 through to 1983, Mr. Nagra was absent on some ten separate occasions for durations ranging from seven days to fifty-four days. There was no single recurring cause of absence, each one being related to a separate injury or medical problem such as, for example, tonsillitis, duodenal ulcer, a strained right shoulder, flu, and injuries sustained in an assault.
In mid-1983 the grievor’s supervisors developed a suspicion that he was suffering from an alcohol related problem. He then initially denied any problems, frustrating the Company’s ability to offer him assistance. Following further absences in the summer of 1983, on October 3, 1983, the grievor advised the Company that he did have a drinking problem for which he wished to obtain assistance. He was then granted a leave of absence on account of sickness from September 21, 1983 until October 16 of the same year to address his alcohol abuse problem. Upon his return to duty he entered the Company’s alcohol control program. Immediately thereafter he registered a positive rate of attendance between October of 1983 and June of 1984.
After that date, however, the grievor’s attendance deteriorated, as reflected in the pattern displayed in the table reproduced above. Again the causes of his various absences were multiple and generally unrelated. Examples include a sprained right wrist sustained playing soccer, acute anxiety and depression, a back injury from slipping while at work, a whiplash injury in a motor vehicle accident while off-duty and acute lumbosacral strain sustained moving his refrigerator, to name a few.
The material discloses that Mr. Nagra was spoken to on a number of occasions about his unacceptable rate of absenteeism. At the hearing, Mr. A Langlois, Works Manager at Ogden Shops, related that he spoke with Mr. Nagra on four separate occasions between November of 1986 and December of 1987, prior to the decision to terminate his employment in late February of 1988. On at least two of those occasions it is not disputed that Mr. Nagra had a Union representative in attendance. Mr. Langlois relates that on each occasion he expressly told Mr. Nagra that his job was in jeopardy if he could not bring his rate of attendance back to normal. According to Mr. Langlois the grievor seemed to acknowledge his understanding of that, and indicated on each occasion that there would be no further problem. The account of these meetings is to some extent corroborated by the statement of Mr. J.E. Narain, Personnel Development Officer of the Company at Ogden Shops. He attended the meetings on January 7, March 11, November 19 and December 21 of 1987 at which he confirms that Mr. Nagra was warned by Mr. Langlois that his employment was in jeopardy if his attendance did not improve. The culminating absence occurred between January 31,1988 and February 22, 1988 when Mr. Nagra was absent for twenty-three calendar days on account of acute bronchitis and dizziness.
It is well-established that an employer is entitled, where circumstances justify it, to terminate the employment of a person whose innocent absenteeism reaches a degree incompatible with the fundamental contract of service to the employer. As was stated by Arbitrator Shime in United Automobile Workers Local 458 and Massey Ferguson Industries Ltd., reported at 24 L.A.C. 344:
Initially, I accept the Company’ submissions that excessive absenteeism may warrant termination of the employment relationship and that discharge is justified in a non-punitive sense because the employment relationship is contractual and where an employee cannot report for work for reasons which are not his fault he imposes loss on an employer so that after a certain stage of accommodation of legitimate interests of both employer and employee requires a power of justifiable termination in the employer.
It is generally accepted that for an employer to be entitled to invoke its right to terminate an employee for innocent absenteeism it must satisfy two substantive requirements, namely that the employee has demonstrated an unacceptable level of absenteeism as compared with the average of his or her peers over a sufficiently representative period of time, and, secondly, that there is no reasonable basis to believe that his or her performance in that regard will improve in the future. In addition, it has been suggested that it may be appropriate for the employer to give some advance warning to an employee when his or her rate of absenteeism threatens to jeopardize continued employment (See Re Denison Mines and United Steel Workers (1983), 12 L.A.C.(3d) 364 (Adams). The Union’s representative draws to the Arbitrator’s attention the following passage found on page 370 of that award, drawn from the reported award of this Arbitrator in Automatic Electric(Canada) Ltd. and International Union of Electrical Radio and Machine Workers Local 526(1978) which is as follows:
We turn to the question of adequate warning. There is something of an anomaly in suggesting that an employee should be warned that further absenteeism due to illness will result in his or her discharge. To the extent that the culminating medical problem is a bona fide illness beyond the power of the employee to prevent there is little or no use in a warning. But that will not always by the case. Sometimes a warning will be appropriate, particularly where absenteeism due to illness is based in part on the failure of an employee to exercise due precaution or obtain the medical attention that will correct his or her problem or prevent its recurrence. Moreover, not all employee save the same will power to work with the discomfort of certain minor illness. The discomfort may be made more or less tolerable through medication or through extra personal fortitude. Thus, a warning is appropriate in that it will allow an employee in certain circumstances to improve his or her attendance record by exercising greater precaution, obtaining the proper medication or choosing to tolerate certain minor illness or discomforts which might otherwise have kept them home.
Lastly, apart from the practical value of a warning, there is a valid equitable consideration to justify the requirement of a warning when management is contemplating the discharge of an employee for blameless absenteeism. In so far as absenteeism for medical reasons can be controlled or mitigated by an employee, it would be unfair for management to allow an employee to be lulled into a false sense of security by management’s continued failure to deal with the employee’s absenteeism extended continuously over the course of several years.
A substantial part of the submissions ably made by the Union’s representative in this case is that the Company failed to give to Mr. Nagra written warning that his rate of absenteeism could result in the termination of his employment. While it is true that he did not receive any written notice as such, and that in general a letter of warning or other written memorandum is preferable to the extent that it ensures some certainty of a warning, there is ample evidence in the instant case to satisfy the Arbitrator that Mr. Nagra was in fact clearly put on notice that this performance in respect of his attendance at work was entirely unacceptable and could lead to his discharge. The account provided to the hearing by Mr. Langlois, supported by the statements of Mr. Narain, leave no doubt in the mind of the Arbitrator that on a number of occasions Mr. Nagra was told in clear and unequivocal terms that a failure to improve his attendance could result in his discharge. In matters of this kind it is substance, and not form, which much prevail. This is not a circumstance where it can be said that Mr. Nagra was lulled into a sense of complacency or led to believe that further absenteeism would have no impact on his job security. The contrary is plainly the case. In the circumstances the considerations discussed in the Automatic Electric case, insofar as any lulling of the employee into a sense of false security might be concerned, simply do not apply.
What then does the record disclose? It is not disputed that it demonstrates a remarkably high rate of absenteeism sustained over a period of several years. It may be stressed that at the hearing it was not suggested by the grievor or his bargaining agent that he now suffers from a lack of control of his alcoholism or is in need of further help. Nor is there any medical evidence to suggest that Mr. Nagra will not, in the future, be subject to the range of injuries and ailments, some recurring and others not, which have afflicted him in the past.
In the Arbitrator’s view, this is a case from which an employer is fairly entitled to infer from an employee’s record of extremely negative attendance at work, that the same record may reasonably be expected to assert itself in the future. While on occasion arbitrators may exercise their discretion to reinstate an employee terminated for innocent absenteeism, they generally do so only where there is good and sufficient evidence of some rehabilitation and proof, generally in some documented form that the prognosis for the future is positive. There is no such evidence before me in the instant case.
There is, as well, ample evidence of a tolerant and understanding attitude on the part of the Company over a period of years. This includes at least one substantial leave of absence with pay in the form of sick leave, granted to the grievor by the Company to assist in the rehabilitation of his alcohol problem in 1983. The record does not disclose the actions of an uncaring or insensitive employer.
On the whole I am satisfied that the elements to justify the termination of the grievor are made out. His record of attendance was wholly unsatisfactory for a sustained period of years. He was given every opportunity to correct his attendance problems and, in 1987, was put on clear notice, that his failure to improve would result in his discharge. The grievor has failed to bring to the attention of the Company or of the Arbitrator any evidence that would form a reasonable basis to conclude that his attendance will be better in the future. In light of all of these conclusions, I find that the Company did have just cause to terminate the grievor’s employment.
For the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 23rd day of November, 1989.
(signed) Michel G. Picher