Compassion should not be mistaken for condonation, says public-sector labour board

Habitually late worker suspended for three days argued employer condoned lateness because it let him make up the time
|employmentlawtoday.com

Allowing a habitually late employee to make up time does not mean the employer is condoning the lateness, the Canadian Public Service Labour Relations Board has ruled.

The case involved a finance and administration worker at the Toronto West Tax Services Office who was suspended for three days for being late 10 times, not adhering to requirements for reporting with respect to his lunch break, not providing medical certificates and one instance of unauthorized leave. He grieved the suspension.

The employee said the fact the employer let him make up the time meant that it condoned the behaviour — essentially, he argued that if he came in late, he could simply work later and there would be no problem.

But the employer took a different stance. It said it did not condone the misconduct.

“(The employee) was clearly advised by management of the requirements concerning his attendance at work,” the board said. “The employer recognizes that it allowed the (employee) to make up for missed work but, in doing so, was only trying to be compassionate. Such compassion should not be mistaken for condonation.”

The board said the employee should have known what was expected of him at work, and upheld the three-day suspension.

Background: A history of absenteeism

The three-day suspension was imposed on the worker on May 21, 1997.

On March 7, 1995, he was advised of requirements concerning the provision of medical certificates, the use of vacation leave and reporting procedures with regard to the his hours of work and lunch break.

By letter dated March 31, 1995, he was issued a written reprimand for being late three times, taking a long lunch break and leaving the worksite without permission.

By letter dated Sept. 14, 1995, he was suspended one day for numerous unauthorized absences.

The worker was on “injury on duty leave” from Feb. 20, 1996, until Oct. 7,, 1996.

Prior to his return to work, he was advised by letter of requirements concerning the provision of medical certificates, the use of vacation leave and reporting procedures with regard to his hours of work and lunch break.

By letter dated Feb. 20, 1997, he was again advised of requirements concerning the provision of medical certificates, the use of vacation leave and reporting procedures with regard to his hours of work and lunch break.

The worker was late, did not follow reporting requirements for his lunch break, was absent without authorization or did not provide medical certificates on the following dates:

•April 3, 1997 (late);

•April 7, 1997 (late);

•April 8, 1997 (lunch);

•April 17, 1997 (late);

•April 18, 1997 (lunch);

•April 23, 1997 (unauthorized absence);

•April 28, 1997 (late);

•May 1, 1997 (lunch);

•May 1, 1997 (late);

•May 2, 1997 (late);

•May 2, 1997 (lunch);

•May 12, 1997 (late);

•May 13, 1997 (late);

•May 14, 1997 (late);

•May 15, 1997 (medical certificate);

•May 20, 1997 (medical certificate); and

•May 21, 1997 (late).

Legislation note

The decision, handed down by the board on Sept. 7, 2005, pointed out the that

Public Service Labour Relations Act

changed on April 1, 2005.

Pursuant to s. 61 of the

Public Service Modernization Act

, the decision in this case relied on the provisions of the

Public Service Staff Relations Act

because the suspension happened before the new legislation was in force.

The board did not speculate on how its decision might have been different (if at all) if it had been decided under the new legislation.

For more information see:

Burrow v. Canada (Customs & Revenue Agency)

, 2005 CarswellNat 3437, 2005 CarswellNat 3438, 2005 PSLRB 134, 2005 CRTFP 134 (Can. P.S.L.R.B.)

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