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15 January 2020
In a recent arbitration decision (Teamsters, Local Union 847 v Maple Leaf Sports and Entertainment), the arbitrator upheld the termination of a grievor for excessive absenteeism under the employer's absenteeism policy. In doing so, the arbitrator rejected the union's submission that the grievor's absenteeism should be excused since she was studying for a professional degree to better herself.
Under the policy, employees could be absent without justification or penalty for up to 10% of their scheduled shifts between 1 July and 30 June each year. However, employees could be terminated from their employment if they were absent for more than 10% of their shifts in any one-year period between July and June. Both medically supported absences and personal emergency days under the then Employment Standards Act did not count towards the 10% absentee calculation.
If by January of each year an employee appeared to be approaching a 10% absenteeism rate, they were given a warning so that they could improve their record in the last six months of the year.
The grievor worked part-time at the employer's Real Sports restaurant. Her employment was terminated after two years because her absenteeism rate in the year between 1 July 2017 and 30 June 2018 was 18.46%. The grievor claimed that her absenteeism rate was a result of her studying for her certified public accountant degree.
Although the employee's attendance initially improved after she received her mid-year warning, she was unable to reduce her absenteeism in the second half of the year. The grievor claimed that in the first half of the year she had requested a schedule change, but that the employer had refused. However, the arbitrator noted that the grievor had not asked for a leave of absence or informed her employer that she was studying.
In a further attempt to reduce the grievor's absenteeism rate, the employer treated the maximum allowable absences as personal emergency days on its own initiative, but the grievor's absenteeism rate remained above 10%.
The grievor's employment was terminated pursuant to the policy. The union brought a grievance alleging that the grievor had been discharged from her employment without just cause, contrary to the provisions of the collective agreement.
The employer submitted that the policy was fair and allowed employees to be absent without justification for up to 10% of their shifts (the maximum level that the employer could tolerate) and gave employees opportunities to ensure that their absences fell below 10%. The employer also asserted that the union had accepted the policy.
Although the union did not disagree with the employer's arguments, it stated that the policy should not apply in these unique circumstances since the grievor was merely trying to better herself.
The arbitrator held that the policy was reasonable and had been reasonably applied in this case. In agreeing with the employer, the arbitrator stated that the policy offered employees the flexibility to pursue other commitments while maintaining part-time employment. However, due to the extent of other commitments, an employee may not be able to maintain the level of attendance required as a part-time employee, as was the case with the grievor.
Regarding the policy, the arbitrator noted that it mirrored absentee provisions that the parties had agreed to in other collective agreements and had been accepted in this workplace as well as in others where the union held bargaining rights with the employer.
This arbitration decision confirms that the employer had no obligation to accommodate an employee's educational studies outside of work. In this case, the union and the employer had agreed on a reasonable policy and the employer had applied the policy in a reasonable manner.
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