SHOCRAFT

AWARD

This arbitration concerns the assessment of twenty demerits against Carman R. Cook of Golden, British Columbia for absenteeism. The nature of the dispute is outlined in the Joint Statement of Fact and Issue filed at the hearing, which reads as follows:

DISPUTE:

Discipline assessed (20 demerit marks) Carman B. Cook, Golden B.C. for “absenteeism on January 16, 25 and February 1, 6, 7, 8 and 22, 2002.”

STATEMENT OF FACT:

After an investigative statement was taken on March 11, 2002, Carman B. Cook was issued the following Form 104:

“Please be advised that your record has been debited twenty demerits marks for:

“Absenteeism on Jan. 16, 25, and Feb. 1, 6, 7, 8 and 22, 2002.”

STATEMENT OF ISSUE:

It is the contention of the Union that:

– On the occasions that Mr. Cook left work early he was granted permission to do so by his supervisor and therefore cannot be held culpable;

– Mr. Cook has followed the provisions of Rule 16.1 of the collective agreement and therefore cannot be held culpable;

– Therefore, with regard to the foregoing, it is the position of the Union that the discipline of 20 demerits debited against Carman B. Cook should be removed from his record.

The Company believes the discipline was warranted and denies the Union’s contentions.

The material before the Arbitrator confirms that the Company’s Mechanical Services Department has adopted a policy to regularly review attendance data across its system with a view to improving absenteeism rates. To that end the Company sets what it views as acceptable targets for absenteeism. Failure to meet the target may result in what is described by the Company as an “accountability perspective” which can involve informal discussions with the employee concerned, offers of assistance, formal investigation and where appropriate, discipline.

The acceptable benchmark target of days of absenteeism for 2002 was established by the Company at 3.5%. No evidence was given to explain or justify that standard. It is not disputed that in the year 2001 the actual absentee average for the workforce at the Golden Mechanical Facility was 12%. In March of 2002 a review of absenteeism revealed that Mr. Cook, a carman at Golden, registered an 11% rate of absenteeism over a length of time encompassing two consecutive pay periods. In fact, the grievor registered seven incidents of absences over four pay periods, for a rate of absenteeism of 11%. He was therefore given notice of a formal investigation scheduled for March 10, 2002 to examine into the reasons for his absences and early quits on January 16 and 25, and February 1, 6, 7, 8 and 22, 2002.

Based on the investigation it does not appear disputed that on January 16, the grievor left work early for personal business, the nature of which he declined to disclose, due to its confidential nature. On January 25 he again left work early to deal with a problem concerning his daughter, of whom he has custody. On February 1 he left early because of a migraine headache for which he did not seek medical attention. He also called in sick in advance of the commencement of his tour on February 6, and remained absent through February 7 and 8 for what he described as a flu, with fever and diarrhoea. Finally, he left work early on February 22, again by reason of a migraine.

During the course of the investigation the investigating officer stressed to Mr. Cook that four of his five early quits occurred on a Friday, prior to his days off. He responded that he did not feel that that represented a pattern, and also stated that: “In relation to leaving my shift early all reports indicate I asked for and was given authorization by my immediate supervisor.” That assertion is not disputed by the Company.

It should be noted at the outset that the Company takes the position that the grievor’s absences were culpable. It is on that basis that it assessed discipline, the purpose of which is to change an employee’s conduct through rehabilitation. The employer did not view the situation as one of innocent absenteeism, whereby the reasons for the absence might be irrelevant, but the record of absenteeism itself, coupled with a negative prognosis for the future, would raise questions about the future viability of the grievor’s employment.

In defence of its disciplinary approach in the case at hand the Company stresses that the grievor had reason to know that the Company was concerned about what it viewed as his ongoing failure to maintain an appropriate rate of attendance. In that regard it refers to the fact that on December 27, 2001 he had been assessed ten demerits for absenteeism on some five occasions in late November and early December of 2001.

The Union’s representative submits that the Company has not proceeded properly in the case at hand. Firstly, as regards the five occasions of early quit reviewed during the investigation, he stresses that on each and every occasion the grievor asked for and received the authorization of his supervisor. He maintains that in that circumstance the Company cannot effectively reverse direction and assess discipline for early quits which it’s own supervisors condoned or approved.

With respect to the absences registered on February 6, 7 and 8, when the grievor relates that he was suffering from the flu, the Union’s representative stresses that there was no attempt on the part of the Company to demand any medical certificate from Mr. Cook to substantiate his absence at the time. He argues that it is unfair for the Company, one month after the fact, to expect the employee to produce medical certificates at a subsequently convened disciplinary investigation. He submits that as a matter of law the Company was obligated to ask for medical certificates, in writing, within fifteen days after his return to work. In that regard he draws to the Arbitrator’s attention the provisions of article 239(1) of the Canada Labour Code which read as follows:

239(1) Subject to subsection (1.1), no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence due to illness or injury if

(a) the employee has completed three consecutive months of continuous employment by the employer prior to the absence;

(b) the period of absence does not exceed twelve weeks; and

(c) the employee, if requested in writing by the employer within fifteen days after his return to work, provides the employer with a certificate of a qualified medical practitioner certifying that the employee was incapable of working due to illness or injury for a specified period of time, and that that period of time coincides with the absence of the employee from work.

In reply the Company maintains that it did have grounds to discipline the grievor for his early quits, notwithstanding that his supervisors gave their authorization. In that regard the Company’s representative argues that presenting his supervisors with such matters as confidential personal problems or urgent errands in relation to the grievor’s daughter placed the supervisors in an invidious position, making it virtually impossible to say no. Nevertheless, he argues, the Company can resort to discipline to convey to the grievor the importance of ordering his personal affairs in such a way as will not necessitate the grievor absenting himself from work in that fashion. Secondly, with respect to the issue of medical documentation, the Company’s representative refers the Arbitrator to CROA jurisprudence which confirms that it may be incumbent upon an employee to provide medical documentation at the investigation stage, particularly where the individual has been previously disciplined for culpable absenteeism (CROA 2845).

I turn to consider the merits of the dispute. In doing so I consider it important to bear certain basic principles in mind. Primary among them is the difference between culpable and non-culpable absenteeism. It is well established in Canadian arbitral jurisprudence that an employer may be justified in terminating the services of an employee for absenteeism which is non-culpable, that is to say which is occasioned by factors beyond the employee’s control. In that circumstance it is incumbent upon the employer to demonstrate that the employee has registered a rate of absenteeism substantially in excess of the norm for a sufficiently representative period of time, and that there is no reasonable prognosis for any improvement of the employee’s attendance in the future. Alternatively, should the employer view the absences of an employee as culpable, in a sense that they occurred for reasons within the employee’s control and were therefore avoidable, or where the employer does not accept the truth of the employee’s explanation for his or her absence, discipline may be resorted to. The difference between the disciplinary and non-disciplinary approach was noted as follows in Brown & Beatty, Canadian Labour Arbitration, para. 7:6100:

… One arbitrator has summarized this balancing of the respective interests of the employer and employee in the following terms:

The first basic principle is that innocent absenteeism cannot be grounds for discipline, in the sense of punishment for blameworthy conduct. It is obviously unfair to punish someone for conduct that is beyond his control and thus not his fault. However, arbitrators have agreed that, in certain very serious situations, extremely excessive absenteeism may warrant termination of the employment relationship, thus discharge in a non-punitive sense. Because the relationship is contractual, and the employer should have the right to the performance he is paying for, the employer should have the power to replace an employee on a job, notwithstanding the blameless of the latter. If an employee cannot report to work for reasons that are not his fault, he imposes losses on a employer who is also not at fault. To a certain extent, these kinds of losses due to innocent absenteeism must be borne by the employer. However, after a certain stage is reached, the accommodation of the legitimate interests of both employer and employee requires a power of justifiable termination of the former. (Massey-Ferguson Ltd. (1969), 20 L.A.C. 370 (Weiller), at p. 371)

In CROA 2245 the Arbitrator commented as follows:

The Canadian law of arbitration has long recognized that an employer is entitled to treat absenteeism and lateness in either a disciplinary or non-disciplinary fashion. If it is of the view that an employee’s absenteeism is occasioned by his or her failure to act responsibly in matters which are within the employee’s control, a disciplinary response may be appropriate. …

…

… The Corporation has a legitimate interest in recording an employee’s attendance record and, even if it chooses to treat it as non-culpable, of ensuring that the employee is aware of his or her record in that regard. That approach serves the proper business purpose of the Corporation in ensuring, insofar as possible, that the fundamental obligations of an individual’s contract of employment will be fulfilled while, on the other hand, protecting the interests of the employee, who might otherwise be left unaware of the jeopardy which recurring innocent absenteeism and lateness might occasion for his or her ongoing employment relationship.

The instant case raises substantial difficulty in that it appears that the Company is attempting to ride two horses at once. On the one hand the grievor’s supervisors authorized his early quits on some five occasions, approving his leaving early, whether because he was not feeling well or to deal with personal and/or family matters. As the jurisprudence amply confirms, nothing would prevent the employer from recording such authorized early quits and absences over a meaningful period of time, and ultimately concluding, if a recurring pattern could be shown, that the employee was involved in an unacceptable rate of innocent absenteeism which would, coupled with the inference that there would be no reason to expect any improvement in the future, justify the termination of his employment for non-culpable reasons. Where, however, a relatively short period is utilized, as in the case at hand two pay periods, it is obviously more difficult for an employer to have resort to the non-disciplinary approach. The difficulty in the instant case is that recourse to discipline for early quits for absences is difficult to square with the Company’s own involvement in those absences, to the extent that they were authorized or approved.

Different, but equally significant, concerns arise with respect to the three day absence registered by the grievor on February 6 through 8, 2002 when he related to his employer that he was suffering from the flu. If the Company had concerns about the truth of the grievor’s assertion concerning his fitness to work, particularly in light of his prior disciplinary record, it was open to it to then demand that he produce a medical certificate to substantiate his three day absence. Such a demand must, however, be made within a reasonable period of time, and ideally at the point at which the employee communicates his absence, or failing that, when he first returns to work. From the grievor’s standpoint, to all outward appearances, when he came back to work following his three day absence in February, no issue was taken with the legitimacy of his claim to have suffered the flu. From a practical standpoint it is problematic, if not somewhat prejudicial, to make the first demand that the employee produce medical certification for a three day absence only one month after the event, in the context of a disciplinary investigation.

If it chooses to follow the disciplinary route an employer must bear in mind that it, and not the employee, bears the burden of proof. While the failure to provide medical certification following a timely request by the employer might give rise to negative inferences, the passage of time between the incident of absenteeism and the eventual demand for documentation makes it more difficult, if not impossible, to draw adverse inferences against the employee. Indeed, an employee who returns to work without any utterance of concern or doubt on the part of his or her employer with respect to the bona fides of a three day absence might reasonably be able to presume that no objection is taken by the company, that no further proof is required and that the matter is closed. Indeed it is for that very reason that certain employers adopt a policy whereby employees identified as being involved in chronic absenteeism are flagged as being obligated to provide appropriate documentation for any absence of a certain duration.

On the one hand the Company raises a concern about the rate of absenteeism registered by the grievor, a legitimate concern under the doctrine of innocent absenteeism. On the other hand, it seeks to impose discipline upon him for incidents of absenteeism to which the Company took no objection at the time of their occurrence and, in the case of early quits, in fact gave its approval through the authorization of the grievor’s immediate supervisor. Be that as it may, this grievance concerns discipline and the case must fall to be determined on the basis of what the Company characterizes as culpable absenteeism.

With respect, and with the fullest understanding for the Company’s concern respecting the grievor’s attendance, the evidence before me does not discharge the burden of proof which is upon the Company. The five occasions of early quits reviewed in evidence involved, without dispute, the grievor asking his supervisor to leave early and in all cases receiving authorization to do so. While such occasions may be brought to bear in the compilation of absences for the purposes of terminating an employee for innocent absenteeism, they cannot in fairness be the subject of discipline ,to the extent that they were condoned and approved by the employer itself. Secondly, for the reasons touched upon above, the Company cannot challenge the bona fides of his illness or fault the grievor for not producing medical documentation for his three day absence in February when it did not assert its disbelief or request any such documentation itself at the time. Bearing in mind that the Company bears the burden of proof, the Arbitrator cannot conclude, on the balance of probabilities, that the grievor was not in fact suffering from the flu on the days in question. To draw adverse inferences against him for failing to provide documentation at an investigation of which he was given notice only a month later would be manifestly prejudicial.

In coming to the foregoing conclusions the Arbitrator makes no conclusive comment upon the Union’s assertion of what it describes as the Company’s obligation concerning the demand of medical documentation as provided under section 239(1) of the Canada Labour Code. On a first reading, however, it would appear to the Arbitrator that sub-paragraph (c) of that section does not circumscribe the period of time during which an employer may or may not require a medical certificate, or the method by which such a certificate is to be demanded. Rather, it is appears to provide a protection against discipline or discharge for an employee who does provide the certificate of a qualified medical practitioner in the circumstances described within the section. In essence, that section of the Code would appear to stand for the reasonable proposition that a bona fide documented injury or illness causing a period of absence which does not exceed twelve weeks cannot justify an employee’s discipline or discharge.

For the foregoing reasons the Arbitrator is compelled to conclude that the Company has not established that the grievor registered unauthorized early quits or absences for reasons involving his own misconduct or deceit, so as to attract discipline. The grievance must therefore be allowed. The Arbitrator directs that the twenty demerits assessed against the grievor be removed from his record forthwith. I retain jurisdiction in the event of any dispute between the parties regarding the interpretation or implementation of this award.

Dated at Toronto, this 14th day of July 2003

(original signed by) MICHEL G. PICHER

ARBITRATOR

SHP 569