SHP 342

IN THE MATTER OF AN ARBITRATION

BETWEEN

NEWFOUNDLAND DOCKYARD CORPORATION

AND

International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers

Re Grievance of David Jones

alleging a violation of the Agreement when he was discharged from employment effective October 2, 1989, on grounds of excessive absenteeism without valid reasons. File No. - 90138

 

 

SOLE ARBITRATOR: W. wayne Thistle, C.Arb.

 

 

There appeared on behalf of the Union:

Allan Locke Vice-General Chairman

 

 

There appeared on behalf of the Company:

R. S. Ivany Manager, Human Resources

Archibald Osmond Witness

Hayward Gosse Witness

Alex Smallwood Witness

 

A hearing in this matter was held in St. John's Newfoundland on 6 July 1990

 

AWARD

At the hearing the parties agreed as follows:

1. The Arbitrator was acceptable.

2. There were no preliminary objections going to jurisdiction to hear the grievance.

3. The grievance procedure had been properly followed or requirements had been waived.

4. The Arbitrator would remain seized of the matter in the event the parties could not agree on the interpretation of this award or in the event there is a question of compensation arising from the award.

5. Witnesses would be permitted to remain throughout the hearing.

The following exhibits were taken into evidence:

Consent 1 Collective Agreement

Consent 2 Letter of April 23, 1990

Consent 3 Company Submission

Consent 4 Union Submission

Consent 5 Medical Certificates

Consent 6 Company Rules and Regulations

SUBMISSIONS

The Company:

In its opening statement, the Company maintained the discharge of the grievor was justified based on his record of absenteeism and his short length of service. He was adequately warned about his absenteeism and the reasons he gave for being absent were not acceptable.

The first witness called by the Company was Archibald Osmond, then Mason Shop Foreman and now General Services Foreman.

The grievor had worked under his jurisdiction most of the time. He had spoken to the grievor about his absenteeism on several occasions. On one occasion when he asked the grievor why he had not come in the response was that he was partying and needed time to recuperate. On another occasion, the reason he gave was that his father had to grease and oil his car. On another occasion he said be had to leave work to go home to give his sister some money. Other times he simply said that he was sick. Mr. Osmond told the grievor that if he continued on this route he was going to find himself in trouble. He was late more often than not and often left early. His whole attitude was not good for a new employee.

Mr. Osmond explained that he has no bias against the grievor. He hardly knows him and there is absolutely no reason for the Union to suggest that he was not impartial towards the grievor.

Mr. Osmond would record the grievor's daily time sheet and everything else with respect to the lost time report would be done clerically in the office. If the grievor came in with a doctor's certificate then he would not be marked absent. This record keeping would be done in the office.

Under cross-examination, Mr. Osmond acknowledged that on each occasion when the grievor left early he always sought permission. The time he went home to give his sister some money was when she needed the money for a drug prescription. The reasons he gave for leaving early included the fact he had a headache, he had business to do or he had to meet someone. At times when he was late it could often only be by fifteen minutes.

The second witness called by the Company was Hayward Gosse. He was Zone Foreman at the time the grievor was employed and on occasions the grievor worked under his supervision. On a couple of occasions he spoke to the grievor about his absenteeism. At one time he mentioned to the grievor he was going down the wrong road by losing so much time. On another occasion when the grievor came in late in the morning he gave him some friendly advice to encourage him to stay out of trouble. Mr. Gosse knew the grievor because his father worked with Mr. Gosse. The grievor only worked under his supervision for approximately one month first when he started. He gave the grievor two warnings once when he left early and the other time when he came in late.

The third witness called by the Company was Alex Smallwood. He was Foreman on the Hudson when the grievor was employed. The grievor worked under his jurisdiction on and off. He had spoken to the grievor about the fact his lost time was unacceptable. He told him that if he did not improve he would be taken in for a statement, i.e., he would be disciplined. As far as Mr. Smallwood knew, the grievor was also spoken to by his regular Foreman. After Mr. Smallwood spoke to the grievor he also spoke to his father. He told him to have a talk to the grievor. His response was that he had spoken to him and there was nothing further he could do. It was in August that he spoke to the grievor's father. On July 13 the grievor had completed the sixty-five day probationary period.

The Company presented a written argument which is attached hereto as Appendix "A."

In addition to its written submission, the Company noted that there is nowhere in the Collective Agreement the requirement that warnings have to be given in the manner as argued by the Union. It noted that the doctrine of progressive discipline is not normally applied to a probationary period. The grievor had completed the probationary period without the need for discipline. For a time he had forty-two days with no absence. A long-service employee would have a lengthy good record to rely on to justify the imposition of a lighter discipline. The grievor has no such record.

As far as the medical evidence which was produced by the Union on February 9 is concerned, the Company queried why this had not been produced earlier. When it was presented, the Company gave it due weight and considered that the grievor had been ill the times in question. This did not affect the discipline that had been determined as appropriate.

In conclusion, the Company asked that the grievance be denied.

The Union

In its opening statement, the Union contended that the grievor had not been properly warned about his absenteeism in accordance with the Collective Agreement. Discharge is excessive for an offence of this nature. The grievor did have medical records and doctor's notes for the time he was off.

The Union did not call any witnesses to present evidence. It did present a written submission which is attached hereto as Appendix "B."

The Union raised an issue as to the time the grievor was called in to give a statement. This occurred at 3:00 p.m. on a Friday. The Union had made its concerns known to the Company but its response was that this was done at the grievor's request. The Company also had an opportunity to get medical records from the grievor when he arrived on the job on August 24. This would have meant the grievor could have been written in as sick.

In conclusion, the Union maintained that, if the grievor had been given proper warnings, his attitude night have changed and the discharge would not have occurred. It contended that, based on the facts, the discharge is excessive and the grievance should be upheld.

CONSIDERATIONS AND DECISION OF THE ARBITRATOR

The Union filed a grievance on October 24, 1989, on behalf of David Jones, a Labourer who had been terminated from his employment by letter dated October 2, 1989. The letter to the grievor stated as follows:

October 2, 1989

Mr. David Jones

PIN 980084

Classified Labourer

Dear Mr. Jones

Reference statement taken of you September 14, 1989 in connection with absenteeism and punctuality. Effective immediately your services are being terminated with Newfoundland Dockyard Corporation for excessive absenteeism without valid reasons. Records indicate that your timekeeping during probationary period was satisfactory and towards the end of that 65 day probationary period everything changed. As you are a relatively new employee our Company can only expect your record to deteriorate when one considers the excuses for your absenteeism. For these reasons your services are terminated.

Please sign the attached form 780 and return the bottom portion acknowledging receipt of same.

Yours truly,

R. Simms

Manager contracts

The grievance was reviewed by Mr. R.S. Ivany, Manager of Human Resources and, in a letter dated October 31, 1989, he informed the Union as follows:

October 31, 1989

Mr. Allan Locke

Vice-General Chairman

International Brotherhood of Boilermakers

c/o Newfoundland Dockyard

St. John's, Nfld.

Reference-your letter of October 24, 1989 appealing termination of Mr. David Jones' service with Newfoundland Dockyard.

I have reviewed this file and can see no basis for your allegation of a violation of Rule 12.1. It is evident that from July onward Mr. Jones' absences from work and the reasons offered for same were for the most part completely unacceptable and reflect an irresponsible attitude.

In regard to your allegation that Mr. Jones was not properly warned about absenteeism and punctuality. The investigation report shows that Foremen Osmond, Smallwood and Goose all spoke to Mr. Jones on several occasions' about his absenteeism. Mr. Jones acknowledged this.

Considering that Mr. Jones was a new employee with only approximately five months service, I am satisfied that termination of his service was justified. Your request for reinstatement is declined.

Yours truly,

R.S. Ivany

Manager Human Resources

At the hearing, oral evidence was adduced through witnesses on behalf of the Company. The grievor was not called to give testimony. The Union's complaint is essentially that there did not exist just cause for the grievor's termination and, not only had there never been any excessive absenteeism, the grievor was never warned about his absenteeism. The Union also expressed concern about the time of day when the Company interviewed the grievor regarding his absenteeism and took a statement from him. It further disagreed with Mr. A. Osmond taking the statement because he was not impartial and unbiased.

In respect of the latter concerns, although reference is made in the Union's argument, there is no evidence whatsoever to support any allegation of bias or lack of impartiality on the part of Mr. Osmond. To convince an arbitrator that bias or lack of impartiality exists, it is not sufficient merely to make allegations in an argument. Mr. Osmond's handling of the grievor's hospital record when he reported for work on August 25, 1989, and his involvement in the entire matter as indicated in evidence does not substantiate the allegations of the Union. On the other hand, Mr. Osmond denied any prior knowledge of the grievor and there is nothing in his evidence or by way of cross-examination which would lead me to conclude there was bias or lack of impartiality.

In respect of the timing of the grievor's interview and statement, I can find nothing which would support a violation of the Agreement or lack of fair procedure because it was conducted at 3:00 pm. on the date in question. There is a suggestion by the Union that the grievor was not happy with that time but there is nothing in the evidence to indicate ho had made such views, known or requested an alternate time.

This brings me to the substantive issue in respect of the discharge of the grievor. The Company has to establish that the conduct of the grievor warranted the imposition of a disciplinary sanction and that the discipline imposed, in this case a discharge, was reasonable upon an examination of all the circumstances. Even if the discharge were determined to be appropriate, there may be grounds which can be relied upon to ameliorate that sanction. This requires a consideration of a variety of factors which, if present to one degree or another, might ameliorate the gravity of the misconduct.

Before I deal specifically with the grievor's conduct, I shall review briefly how arbitrators have approached an assessment of a management decision to terminate an employee for repeated absences from work.

It is well established in arbitral jurisprudence that an employee will be subject to disciplinary penalties up to and including discharge if he is absent from work on one or more occasions without permission, without justifiable excuse or without having provided his employer with adequate notice. (See Brown and Beatty, Canadian Labour Arbitration, 2nd edition, at pp. 7-26 and 7-27.) The requirement to attend at work is an essential part of the employment bargain and failure to attend when no permission is granted, when there is no justifiable excuse or when adequate notice has not been given, places the employer in a position where it is unable to plan and organize its work force and to deploy that work force to its best advantage.

An employee is generally required to fully apprise the employer both as to the fact of and the reasons for his absence. This should be done personally because it is not clear that requesting a fellow employee, relative or roommate to advise the employer of the absence will be regarded as sufficient notice if the latter fails to do so. (See Canadian Liquid Air Ltd. (1972), 23 L.A.C. 395 (Brown); Stauffer Chemical Co. of Canada Ltd. (1970), 22 L.A.C. 42 (Brown); Brunswick of Canada Ltd. (1964), 15 L.A.C. 232 (Reville).)

There are, of course, situations where absences are legitimate and arbitrators have adopted a balancing approach weighing the circumstances of each fact situation. In the instant case, the evidence is the Company imposed discharge because of the grievor's record of absenteeism and punctuality and the inadequacies of the reasons given for the absenteeism. The Company had summarized his work record in a letter dated February 16, 1990. It acknowledged that the period of absence from August 23, 1989, to September 1, 1989, was covered by a medical certificate. This record is explained as follows:

For the first 43 working days he had no lost time. During the remaining 61 working days of his employment he lost time on 13 days for a total of 28 1/2 hours lost, he was absent 8 days and sick or injured for 10 1/2 days. Stated conversely, he worked only 29 full days during this 61 working day period.

It is important to note that the eight days' absent occurred without any valid reason for the absence, a number of days which any employer would have considerable difficulty in accepting.

Some of the reasons given for poor attendance were covered in an interview with the grievor on September 14, 1989.

These include the following:

1 "Stomach sick sometimes and headaches."

2 In August he had moved out of his parents' home and "had to get some time to straighten up what I was doing."

3 His roommate had been asked to call in to say he "had a migraine or something."

4 He had to go home to give his sister some money.

5 His father had to grease and oil his car.

6 He got sick on the job and had to go home to get medication such as aspirin.

7 He had to stay off work because the night before he was celebrating his birthday.

The Union did attempt to offer an explanation concerning some of these reasons, but in the end result it has to be acknowledged that an employee does not have the flexibility to decide if he is going to report for work under some of the circumstances as described.

When one considers the grievor's entire record, particularly his absences without permission, it can readily be concluded that discipline was appropriate. Also, given the magnitude of the attendance and punctuality problem over such a short period of time, discharge is certainly not an unreasonable penalty.

The only issue then remaining is whether there are any mitigating circumstances which would warrant an amelioration of the penalty. I have reviewed all the evidence and, using the criteria advanced by arbitrators as legitimate in this analysis, I can find no basis upon which to alter the penalty. Of particular significance, is the relatively short employment record of the grievor, a mere five months, and a period in which one would think an employee would make every effort to report regularly at work.

With respect to the issue of warnings, I am satisfied that the grievor's lack of punctuality and poor attendance was brought to his attention on several occasions and he was alerted to the consequences of a failure to maintain regularity. In fact, in the record of his interview of September 14, 1989, it was noted by Mr. Osmond that "myself and Mr. A. Smallwood and Mr. H. Gosse all spoke to Mr. Jones on several occasions about his absenteeism." Mr. Locke then asked Mr. Jones: "is this true?" and it is noted that "Mr. Jones nodded in confirmation." The grievor signed this record of the investigation.

In summary, I can find no violation of Article 12.1 of Agreement 4C. The grievor was warned about his absenteeism; the reasons he gave for lack of punctuality and excessive absenteeism are unsatisfactory. His record warrants the imposition of discipline and, given the magnitude of the problem over such a short period of time, discharge is a reasonable penalty. There are no reasons which would warrant & mitigation of the penalty.

For all of the above reasons the grievance must be denied.

90138

DATED AT St. John's Newfoundland, 28 September 1990.

(sgd) W. Wayne Thistle

Arbitrator