Arbitrator awards worker his job back

Alberta food worker fired after skipping work to play baseball, but company didn't follow its own progressive discipline policy
|employmentlawtoday.com

A part-time food worker was awarded his job back by the Alberta Arbitration Board after his employer fired him without following its own progressive discipline policy.

Michael Kellis was a part-time shipper at the Safeway-owned Lucerne milk plant. He was fired for failing to report to work and allegedly providing a false explanation for his absence.

The employer said his dishonesty at the time of the incident, his refusal to admit his wrongdoing up to and including the arbitration hearing, justified termination.

The United Food and Commercial Workers, Local 401, argued that while Kellis could have done a better job communicating with management about his absence, the employer’s response was completely disproportionate. The union pointed out that Kellis had an unblemished record and the company’s attendance policy contained penalties for missed shifts that were far less harsh than termination.

Discipline-free record

Kellis was hired in 1989 as a shipper. He had a discipline-free record prior to his discharge and was described by the plant manager as “a good shipper.”

In the fall of 2003, Kellis, 33, voluntarily switched from full-time to part-time in order to return to school. As a part-time employee, he would typically work two eight-hour shifts per week. The evidence showed that until May 2004, he was given a lot of flexibility in scheduling under his long-time supervisor and friend.

But that flexibility ended when that supervisor was replaced with another. The new supervisor was much less flexible. She said she scheduled Kellis based on operational needs rather than his personal preferences. She said Kellis was not happy with her approach.

Doctor’s appointment or baseball tournament?

The incident that gave rise to the discharge arose on the August 2004 Civic Holiday long weekend. Kellis was scheduled to work two morning shifts on the long weekend.

But on the Wednesday before the weekend, he called his lead hand and left a voice mail message. It said he would not be able to work on the weekend because he had to take his wife out of town to see a specialist about her ankle.

In his testimony Kellis said his wife had suffered an injury at the end of June that had not been healing well. She had been trying to arrange an appointment with a naturopath in Lacombe, Alta., who had treated her successfully in the past.

When he called to cancel his shifts he had been under the mistaken impression that his wife had obtained an appointment for the Saturday, he said. But his wife had only been advised that there was a good chance an appointment would open up through a cancellation and she should be ready to come on short notice.

When there was no cancellation, Kellis and his wife drove to Edson, Alta., for a three-day mixed league baseball tournament. Kellis made no effort to contact his employer. He thought it was unnecessary since he had already said he would not be at work.

Some of his co-workers were also at the tournament. His participation in the tournament on days he was scheduled to work was reported to management. The company started an investigation.

On Aug. 17, the company received a letter from the doctor who was caring for his wife. It said she was felling unwell, experiencing increased leg swelling, back pain and jaw pain. As a result, she was unable to care for her son and Kellis needed to stay home from July 31 to Aug. 1 to accommodate her illness.

His wife was at the tournament with him but was on crutches and was in obvious pain, according to co-workers who were at the tournament.

The company did not feel the note adequately explained his absence. It met with Kellis on Aug. 26 with a union representative in attendance. Much of the meeting dwelt on his insistence that his family needs took priority over work, a subject upon which Kellis became quite agitated. At the end of the meeting, Kellis was suspended indefinitely.

The termination letter

After consulting with Safeway’s labour relations department, Kellis was fired on Sept. 7, 2004. The letter said, in part:

“You have seriously breached the trust that is so important in the employer/employee relationship.

“After very careful consideration, we must advise you that your employment with Canada Safeway is terminated effective immediately for failing to show up for scheduled shifts and in violation of company policies and procedures.

“This is a result of being dishonest about reasons for your absence.”

Dishonesty the culprit

The employer said the main reason for dismissal was his dishonesty. In the company’s opinion, Kellis had lied about the reason for missing his shifts on the long weekend. It believed Kellis had simply taken time off in order to play baseball.

The company said it also considered past absenteeism problems it had with Kellis, stating that “there were lots of HR-type issues with (Kellis) at the plant.” His long service was noted, but the company admitted it did not review his file in detail and so did not specifically know he had never been disciplined.

The company also said it was able to cover his shift and that it had not expected him to report once he had advised management of his intention to miss the shifts.

The plant’s employee attendance policy

The employee attendance policy stated that any employee absent from scheduled work must have a legitimate reason and must notify their department at least one hour before their scheduled start time. Failure to follow these rules, without reasonable excuse, would result in the following:

•first occurrence: written warning;

•second occurrence: one-day suspension;

•third occurrence: three-day suspension; and

•fourth occurrence: termination of employment.

The three question test

The Alberta Arbitration Board said there were three questions to be addressed:

•Were there grounds for discipline?

•If the answer is yes, was the amount of discipline imposed by management appropriate in the circumstances?

•If the amount of discipline was not appropriate, what amount of discipline should be substituted?

It said the employer undoubtedly had grounds for discipline. It said it did not accept the worker’s explanation for his absence. There was no evidence from the naturopath’s office detailing, for example, appointment discussions with his wife. The note Kellis obtained from his wife’s regular doctor made no mention of the naturopath appointment. Kellis never provided an explanation for booking off both Saturday and Sunday for an apparent Saturday appointment.

“The events are much more consistent with an intention to participate fully in the baseball tournament,” the arbitrator said. “I conclude that the naturopath appointment was a convenient excuse fabricated by (Kellis) to book off his shifts.”

Since he provided a false reason for his absence and was dishonest, and his dishonesty continued through the investigation, the employer had grounds for discipline. But the arbitrator said discharge was too harsh a penalty, though it prefaced that by saying there were certainly reasons to support termination in this case.

“Honesty and trustworthiness are fundamental to the employment relationship,” the arbitrator said. “It is generally well established that the employment relationship must be characterized by honesty and good faith and when that element is lacking the relationship is severely impaired.”

Kellis was dishonest when he called his supervisor to book time off. He was dishonest when he provided a medical note from his wife’s doctor that he knew to be untrue and he was dishonest when interviewed by management.

“He was neither apologetic nor remorseful,” the arbitrator said. “His lack of candour continued at the arbitration hearing, a factor that has led some arbitrators to discount the likelihood of a change in behaviour.”

But, in this case, discharge was simply too harsh a penalty. Kellis did provide advance notice of his absence. Under the employer’s attendance policy, first and second offences, which is how the plant manager characterized the two-day absence, would attract a one-day suspension.

“Thus, while deliberately absenting oneself from work for illegitimate reasons (and playing baseball falls into this category) is a serious workplace offense, the (worker’s) illegitimate absences, in themselves, would not have attracted a penalty approaching discharge,” the arbitrator said.

“Particularly egregious conduct” necessary in this case to establish cause

The arbitrator also took into consideration the 15 years of unblemished service Kellis had with the company. (The company did allege other HR problems with Kellis, but the arbitrator dismissed those because there was nothing in his record about them and it would have been inappropriate to consider them.)

“In essence, (Kellis) was dismissed the very first time he was disciplined in the course of 15 years of employment with the company,” the arbitrator said. “In my view, after 15 years of discipline-free service it would take particularly egregious misconduct, such as theft or assault, to establish that the employment relationship has been irreparably breached by a first offence and that a lesser amount of discipline would not suffice to correct the impugned behaviour.”

Employee reinstated, but no back pay awarded

So while the dishonesty was “very serious misconduct” it did not justify dismissal. The arbitrator awarded Kellis his job back. But the arbitrator did not order the employer to give him back pay for the time he missed.

“(His) original misconduct combined his continued lack of honesty disentitle him to any compensation,” the arbitrator said. “Accordingly, while he is entitled to reinstatement, no backpay is awarded.”

For more information see:

Canada Safeway Ltd. v. U.F.C.W., Local 401, 2005 CarswellAlta 1376, [2005] L.V.I. 3587-1 (Alta. Arb. Bd.)

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