Arbitrator Upholds Properly Drafted and Applied Absenteeism Policy

By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.

One of the most important crucial aspects of managing the employment relationship is written policies. Company policies, when drafted and applied properly, can be an effective shield against liability in many employment law cases. Through policy, an employer sets the rights and obligations of the employer and the workers within the workplace. When employers draft up-to-date policy that stays within legal boundaries and workers are kept notified about their rights and obligations under that policy, employers may often successfully fend off legal action such as wrongful dismissal or constructive dismissal.

However, these rules are not absolute and sovereign in any workplace. Any drafted policy must comply with the law. Company policy does not replace the law and so policy which runs counter to a worker’s rights or an employer’s obligations under the law will be of little help to an employer defending against or responding to a worker’s claim or application. Thus, by understanding the limits of policy against the law, an employer unlocks the power of effective drafted policy and gains a powerful ally against legal liability.

One scenario in which properly drafted policy is particularly helpful is when dismissing workers. The importance of having effective policy surrounding dismissal follows from the fact that dismissed employees frequently feel that their dismissal violated their rights under law. Whether that is true at law is another question but, by having clear and legal drafted policy which has been communicated to workers, an employer greatly diminishes the chance of being found liable for wrongful dismissal or constructive dismissal.

Teamsters Local Union 847 v Maple Leaf Sports and Entertainment

In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2019 CanLII 95328 (ON LA) (“Teamsters”), a labour arbitrator upheld an employer’s dismissal of a part-time employee for cause because of her breach of its absentee policy. The employer in this case was Real Sports restaurant and the employee, Mariah Squire, had worked for the employer for two years until she was dismissed with cause. The employer’s reason for dismissing the employee was her breach of their absenteeism policy. That policy required that employees keep their absences below 10 percent of their shifts in a one-year period, specifically, between July 1 and June 30 of any given year. As employees reached the 10 percent mark, the employer issued a warning so that they had the opportunity to attempt to bring their rate down in the latter portion of the year.

The employer asserted that its absentee policy was fair, allowing employees some absenteeism without the need to justify those absences up to a certain limit, above which absences were not to be tolerated. The employer noted that an employee in danger of breaching the policy was given multiple opportunities to bring their absenteeism below the 10 percent threshold. The employer alleged that between the dates of July 1, 2017, and June 30, 2018, the employee’s absentee rate was 18.46 percent. The employer attempted to adjust her record by treating her allowable absences as personal emergency days, but, even so, the employee’s absence record still sat well above the 10 percent limit.

The employee did not dispute her absentee record but attempted to justify these absences by claiming that they resulted from efforts to better herself by studying for her Certified Public Accountant degree. The employee’s union also did not dispute the validity of the policy but argued that, accordingly, these unique circumstances of self-improvement were a valid reason not to apply the absentee policy to the employee for the year at issue. The employee further argued that the employer had failed to change her scheduled availability when requested in the first half of the year.

Decision

The arbitrator ultimately found that the absenteeism policy ultimately was both reasonable and reasonably applied. In the decision of Teamsters, adjudicator recognized that the policy contained various flexibilities which permitted the employee to pursue other commitments while maintaining part-time employment. The arbitrator further acknowledged that the policy was accepted by the employee’s union not only in the employer’s workplace but also in other workplaces maintained by the employer in which the union bargained on behalf of its employees. Although not explicitly stated in the succinct decision in Teamsters, the adjudicator appears to have recognized that the employer’s policy had built-in mechanisms to allow an employee to salvage his or her employment relationship by giving warnings in time for the employee to lower his or her rate of absenteeism.

Takeaways

The arbitrator’s decision in Teamsters provides an excellent example of the power of policy when properly drafted and applied. The key to the employer’s success in this case was twofold.

First, the arbitrator recognized that the absenteeism policy was reasonably drafted. One of the key reasons for this finding derived from the policy’s flexibility. That is, the policy took into account the perspective of a part-time employee in the service industry. Such employees often have other goals in life which they hope to pursue while maintaining steady employment to pay their bills. Allowing for absenteeism without justification up to a limit allowed for employees to pursue other goals with independence. The employee’s responsibility was merely to ensure that such absences were measured and kept below the agreed to limit. Furthermore, the policy contained a mechanism by which an employee in violation could bring himself or herself back within compliance with ample time. These two features of the absentee policy showed to the arbitrator in Teamsters that the employer’s absenteeism policy was reasonable and so ought to be upheld.

Second, the arbitrator recognized that the policy was reasonably applied. The employer displayed no unfairness in the way it enforced its policy to the employee, treating her in the same way that it would have treated any other employee in breach. Importantly, the employer made attempts to alter the employee’s record to bring her under the 10 percent threshold. This demonstrated a flexibility of application of its policies to the benefit of the employee, which worked to its advantage before the arbitrator. This flexibility of application demonstrated the employer’s intention to preserve its relationship with the employee if reasonably possible. That is, the employer did not immediately dismiss the employee even when she had legitimately breached its policy despite receiving a warning and having her second chance at bringing herself into compliance. Instead, the employer showed a willingness to shift numbers around to see if there was any way to salvage the employment relationship before dismissal without cause.

Ontario employers can take from Teamsters a good example of how important flexibility is in both the drafting and application of policy. As demonstrated in this decision, when employee interests are kept in mind and mechanisms for second chances are included and applied fairly, employers can successfully ward off employee claims resulting from dismissals for cause.

Comments

  1. This article provides the reader with an opportunity to go directly to and read the arbitration decision – that I note identifies the grievor by name. There is no concern about what impact that might have on the individual. And arguably that is as it should be. (That’s an invitation, to anyone interested, to explain why).

    And yet some arbitration decisions grant the grievor anonymity, usually by substituting initials.

    I suggest that of greater concern is the fact that CanLII continues to rely upon arbitrators to provide copies of their awards at their own discretion. That is despite what it says, for example, in section 96 of B.C.’s Labour Relations Code – http://www.bclaws.ca/civix/document/id/complete/statreg/96244_01. It says that copies of all awards must be provided within 10 days to the director of the Collective Agreement Arbitration Bureau, and that the director must make these available to the public. Are B.C.’s arbitrators and the CAAB’s director complying with this requirement?

    The obvious way for the CAAB’s director to demonstrate compliance is by immediately forwarding all awards to CanLII. Why isn’t that being done?

    The LRB, of which the CAAB appears to be a function, recently issued a decision which bears reading. The Vice Chair has dismissed a complaint from a union member on the basis that she was tardy in providing a copy of the award to the LRB – which should already have had a copy of the award. And I note – something I learned from my own experience – that arbitrators and their clients, the employers and unions, maintain that they have no obligation to provide the grievor with a copy of the award. (In my experience what I received was merely a letter from the union telling me I was no longer a member.)

    This latest extraordinary decision is not yet posted on CanLII. But it is on the BCLRB’s own decision database, the last one currently appearing here – https://lrb.secure.force.com/decisions/.

    (When you open it, have a look at the URL. It appears to reflect I believe that the BCLRB is in the process of outsourcing this function.)

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