Humber River Hospital v Teamsters, Local Union 419, 2019 CanLII 41038 (ON LA)

Date: 2019-05-09

Citation: Humber River Hospital v Teamsters, Local Union 419, 2019 CanLII 41038 (ON

LA), , retrieved on 2021-07-30

IN THE MATTER OF AN ARBITRATION

BETWEEN:

Humber River Hospital

-and-

Teamsters, Local Union 419

Grievance of Paul Nelson

Lorne Slotnick, Arbitrator

Representing the Employer - Thomas Agnew

Representing the Union - Daniel Anisfeld

Hearing - Toronto, Ont., Jan. 11, Feb. 14, and April 8 and 16, 2019 A W A R D

The grievor, Paul Nelson, was terminated from his employment on Aug. 22, 2018, after 25 years of service with Humber River Hospital in Toronto. He had been arrested nearly three weeks earlier and was being detained in custody on criminal charges. The hospital says he failed to comply with his obligation to notify the employer of his absence and provide a reason, and was therefore subject to the "deemed termination" clause in the collective agreement. The union says reasonable efforts were made to notify the hospital that he was unable to attend work, and that the hospital failed to consider a requested leave of absence. It seeks Mr. Nelson's reinstatement with back pay.

Background Facts

Teamsters Local Union 419 represents a service unit at Humber River Hospital in northwest Toronto. The grievor, Mr. Nelson, started at the hospital in 1993, and for his last 14 years was a full-time operating room aide.

On the night of Aug. 2, 2018, Mr. Nelson was involved in an incident outside a bar not far from his home, and was arrested. He is facing serious criminal charges that have not yet gone to trial.He was released with conditions after about six weeks in jail, on Sept. 14. While he was in jail, his employment was terminated pursuant to Article 9.04 of the collective agreement, which in relevant part reads as follows:

9.04Loss of Seniority

An employee shall lose all seniority and shall be deemed terminated if:

...

(c)employee is absent from scheduled work for a period of three (3) or more consecutive working days without notifying the Hospital of such absence and providing a reason satisfactory to the Hospital.

Prior to his arrest, Mr. Nelson had been off work for about a week. Records produced in evidence showed that he called in sick to the unit clerks for his shifts on July 25, 26, 27 and 30. The records also show he called twice on Aug. 2, before his arrest that night, once to say he would be off sick that day, and the second time to say he would be off until Aug. 7, the day after the Civic Holiday. There were no calls from Mr. Nelson after that.

As detailed below, most of the evidence in the case concerned efforts by the hospital to contact Mr. Nelson, and efforts by Mr. Nelson's wife to contact the hospital and request a leave of absence for him. However, it is agreed that the hospital was not told that Mr. Nelson was in jail, even during a grievance meeting after the termination, until shortly before the first scheduled hearing date in this matter.

Evidence

Mr. Nelson testified that he understood his obligation to attend work and to advise the hospital if he was not attending.

A transcript put into evidence shows that Mr. Nelson was brought before a justice of the peace on Aug. 3, and the matter was put over until after the long weekend. Duty counsel spoke on Mr. Nelson's behalf. Mr. Nelson was transferred from a police station to the Toronto South Detention Centre, where he said was able to make only collect calls to land lines.Because of the hospital's automated phone system, he tried but was unable to make a collect call to the employer, he said. By Monday, Aug. 6, he said, he had been able to call his stepfather, whom he asked to contact his wife, who had no land line. His instructions were that his wife should call his manager, Tania D'Arpino, and request a leave of absence due to an emergency. Mr. Nelson said he did not want to disclose to the hospital that he was in jail.

Mr. Nelson testified on cross-examination that he was at the bar for about two hours on the evening of Aug. 2.

Asked why he was out on a day when he had called in sick, he cited a knee injury and his grandmother's illness. He said he had an appointment on Aug. 3 with his family doctor to obtain a medical certificate supporting the absence that started on July 25, but was not able to attend because of his arrest. He said that he had told the hospital in a message to the clerk before the appointment that he would be back on Aug. 7 because he was hoping to be well enough by then to go back.

Mr. Nelson said that no one was speaking on his behalf during his appearance before the justice of the peace after his arrest. When the transcript of the hearing containing statements from duty counsel was pointed out to him, he said he did not know who was who at the court house. It was the first time he had been involved with criminal charges, he said. However, he stated that he was advised by a lawyer he talked to while he was at the police station the night he was arrested not to talk to anyone about the charges and to request a leave of absence.He agreed that the lawyer did not specifically advise him not to tell the employer that he was in jail.

Mr. Nelson testified that he was unable to retain his own lawyer until about two weeks after he was detained, partly because the lawyer he had chosen was out of town for some of that time. The focus at that point was getting out of jail, he said. He said his lawyer advised him not to say anything to anyone about the charges.

On Aug. 6, Mr. Nelson's wife, Natasha de Roos, called Ms. D'Arpino, his manager, as per his instructions. Ms. D'Arpino was off that day for the Civic Holiday, but confirmed in her testimony that she picked up a voice mail the next day from a woman identifying herself as Mr. Nelson's wife. She had been Mr. Nelson's manager for only a few weeks at that point. Ms. de Roos's voice mail has been deleted, Ms. D'Arpino said. Ms. de Roos testified she identified herself on the message and told Ms. D'Arpino that Mr. Nelson was unable to make the call himself and that he was requesting a leave of absence until further notice. She said she left her name and phone number, and asked that her call be returned. However, she said, there was no return call from Ms. D'Arpino. Ms. de Roos said she did not mention that Mr. Nelson was in jail because she was unsure of the ramifications and was afraid of what might happen if that were disclosed.

After Ms. D'Arpino listened to Ms. de Roos's voice mail, she sent an email on Aug. 7 to the hospital's occupational health department and copied it to two people in the human resources department. At this point, Mr. Nelson had been calling in sick the week before but had not provided the requested medical documentation to the occupational health department to support the absence, as the hospital may require after three days off. Ms. D'Arpino's email said, "Paul's wife left me a message informing me that he would not be coming in for his shift this am (he was not here). She also stated that he is taking a personal leave of absence until further notice." Ms. D'Arpino said she copied the human resources department because it was not standard for someone other than the employee to advise that an employee is on a leave; employees would make a request on their own. Further, she said, leaves of absence are supposed to be requested in advance, rather than after the fact. She said she did not recall that Ms. de Roos left her number or asked that the call be returned, adding that she would have put that information in her email had it been the case.

Ms. de Roos's phone records, put into evidence, show two calls on the morning of Aug. 6 to the main hospital number, four minutes apart. The first one is rounded out to two minutes, the second to four minutes. Ms. de Roos said she did not get through on the first call. Ms. D'Arpino said the voicemail was shorter than two minutes, perhaps, she said, because the call was not to her direct number, so a caller would have to go through the automated system to get to her line.

In any event, Ms. D'Arpino did not try to reach Ms. de Roos, but the hospital did send out a letter by courier on Monday, Aug. 13, drafted by the human resources department and dated the previous Friday, Aug. 10. The letter, signed by Ms. D'Arpino, notes Mr. Nelson's continued absence from work and failure to provide medical support for the absence. The letter continues:

Furthermore, we have received notification from your spouse/partner on August 7^th, 2018 that you will be on a personal leave of absence until further notice and since that date we have not received any communication from you. Please note that it is the responsibility of the employee to communicate with their Manager directly and any leaves of absences personal or otherwise must be authorized. You have not complied with Hospital policy. You are hereby given notice that you are currently on an unauthorized leave of absence and you are expected to report to your next scheduled shifts as follows:

The letter then lists Mr. Nelson's next three scheduled shifts, from Aug. 15 to 17, and tells him he must contact Ms. D'Arpino by Aug. 14. It concludes by setting out the text of Article 9.04 (c) of the collective agreement (the deemed termination clause set out above) and says that if he fails to return to work for his scheduled shifts, "the Hospital will deem you have abandoned your position and your employment will be terminated with immediate effect in accordance with Article 9.04 (c)..."

This letter was sent by courier to the address the hospital had on file for Mr. Nelson, on Emmett Avenue in Toronto. Mr. Nelson's evidence was that this address was a condominium owned by his grandparents, where he had lived for a time several years prior. Courier documents put into evidence say the letter was returned to the hospital on Aug. 13, the day it was sent. The same day, Ms. D'Arpino sent the letter to Mr. Nelson's work email address, with a covering email telling Mr. Nelson that "it was not accepted by the individual at your address." Mr. Nelson, still in jail, testified that he had no access to his work email at that point. Ms. D'Arpino said she did not have a personal email address for Mr. Nelson, nor, when she checked, did the human resources department.

Consequently, neither Mr. Nelson nor Ms. de Roos saw the letter sent on Aug. 13 at the time. When Mr. Nelson did not show up to work on Aug. 15 as required by the letter, Ms. D'Arpino contacted the human resources department, which advised on the morning of Aug. 16 that another letter be sent before moving to terminate Mr. Nelson's employment.

This second letter, dated Aug. 16, was sent by courier, again to the Emmett Avenue address. It said Mr. Nelson was required to contact management immediately. Again, it warned him that his job was in jeopardy pursuant to the deemed termination clause. By this time, Mr. Nelson's grandmother had died (while he was in jail) and he said his mother found the Aug. 16 letter, unopened, sometime later while cleaning out the condominium, which was sold the next month. Ms. de Roos said Mr. Nelson's mother told her that there were letters from the hospital addressed to Mr. Nelson; however, Ms. de Roos said she did not see them until after Mr. Nelson's employment had been terminated. Like the letter dated Aug. 10, the Aug. 16 letter was also sent to Mr. Nelson's work email address.

Meanwhile, Ms. de Roos had obtained a service enabling Mr. Nelson to call collect to her cellular phone. Records put into evidence indicate that they talked nearly every day starting on Aug. 16, sometimes multiple times, and often for up to 20 minutes per call.

After leaving the voice mail on Aug. 6, Ms. de Roos did not attempt to contact Ms. D'Arpino again until 10 days later. This time, on Aug. 16, the two women talked, but there are important differences in the details of the call given by each of them in their testimony.Neither took notes.

Ms. de Roos testified that she told Ms. D'Arpino she was calling on Mr. Nelson's behalf and that he was not able to communicate because he had been attacked and beaten. She said Ms. D'Arpino confirmed she had received the voice mail from Aug. 6, and asked whether Mr. Nelson was in hospital, to which Ms. de Roos said she replied no. Ms. de Roos testified she then told Ms. D'Arpino that "there's a legal matter, so I can't provide details," but that Ms. D'Arpino did not ask any follow-up questions. Ms. de Roos said she brought up the fact that she was now aware there had been letters sent to Mr. Nelson's grandparents' address, although she said she had not seen them at this point. She said she asked Ms. D'Arpino to confirm the address on file, and said Ms. D'Arpino confirmed the Emmett Avenue address - the grandparents' condominium. Ms. de Roos testified that she then gave Ms. D'Arpino the current address, asked her to make sure correspondence was sent to the correct place, and also asked her to alert the human resources department to the correct address. She said Ms. D'Arpino agreed to get in touch with the human resources department. Ms. de Roos said she asked Ms. D'Arpino if there was any paperwork necessary and to contact her if anything else needed to be done, and said Ms. D'Arpino responded that she would get back to her if necessary.Ms. de Roos testified that Ms. D'Arpino said a letter had gone out that morning to the Emmett Avenue address.Phone records show this call took five minutes and was placed at 12:30 p.m. to the hospital's central number.

Ms. D'Arpino said that when Ms. de Roos called on Aug. 16, she asked Ms. de Roos if she could speak to Mr. Nelson, as the human resources staff had told her to deal directly with the employee. She said Ms. de Roos told her that Mr. Nelson could not talk, but was not in the hospital. Ms. de Roos told her "it's a legal matter," D'Arpino said. She said she asked Ms. de Roos to have Mr. Nelson call her, and said she would be talking to the human resources department. Ms. D'Arpino said it was a short call, not more than two minutes, as she had little to say to Ms. de Roos and wanted to talk to Mr. Nelson directly. She said she had never met Ms. de Roos and did not know whether Mr. Nelson had a spouse.Ms. D'Arpino said she did not tell Ms. de Roos on Aug. 16 that a letter had been sent out that morning; that could not have happened, she said, as she did not see a draft of the Aug. 16 letter, written and provided by the human resources department, until after the call.An email to Ms. D'Arpino from the human resources department attaching the draft contains the time of 2:03 p.m. that day - an hour and a half after the call from Ms. de Roos. In the email, from Muna Awad of human resources, Ms. Awad also tells Ms. D'Arpino that she "will connect with you regarding the Natasha call later today." Ms. D'Arpino said she had contacted Ms. Awad after Ms. de Roos's call to tell her about it, but had not heard back yet from Ms. Awad when the draft was sent to her at 2:03.

Even after being shown the email indicating that the draft of the Aug. 16 letter was not sent to Ms. D'Arpino until after she talked to Ms. de Roos, Ms. de Roos insisted that Ms. D'Arprino had told her a letter had already gone out that day. "Her exact words were, 'I had just issued a letter earlier this morning,'" she testified, adding that she asked which address it had gone to, and was told Emmett Avenue. She said she did not ask Ms. D'Arpino what the letter was about, saying her main concern was telling Ms. D'Arpino that her husband was unavailable and needed a leave of absence. Nor did Ms. D'Arpino tell her anything about the letter's contents, she said.

Ms. D'Arpino denied that Ms. de Roos said anything about letters being sent to the wrong address, nor made any mention of a correct current address.Had that come up, she said, she would have passed the information to the human resources department. She said she did not discuss the contents of any letters with Ms. de Roos because Ms.

de Roos was not the employee; the hospital's policy, she had been told by human resources staff, was that the employee had to contact her. Had she been told that Mr. Nelson was in jail, she said, she would have asked for advice from human resources.

Asked why she waited 10 days to follow up with Ms. D'Arpino when she understood it was important for her husband to keep his job, Ms. de Roos said she was dealing with numerous issues at the time, with a focus on getting Mr. Nelson released from jail, as well as her own health and job, Mr. Nelson's parents and the death of his grandmother. She said she was giving Ms. D'Arpino time to reply. She acknowledged that she would not have told Ms. D'Arpino that her husband was in jail, even if Ms. D'Arpino had called back before Aug. 16.

Ms. de Roos said she did not follow up with Ms. D'Arpino after they talked on Aug. 16 because she thought the leave of absence had been taken care of, and Ms. D'Arpino had said she would call if anything else was necessary.

With no further word after Aug. 16 from either Mr. Nelson or Ms. de Roos, the hospital followed up on Aug. 22 with a letter terminating Mr. Nelson's employment, sent by courier to the Emmett Avenue address and to Mr. Nelson's work email address. The letter says "it is deemed that you have abandoned your position and employment" with the hospital, again setting out Article 9.04 (c). Ms. de Roos said she saw the letter after she asked Mr. Nelson's mother to forward it to her.

Mr. Nelson said he did not contact the union until after the termination, because he was dealing with his criminal charges and efforts to be released from jail pending his trial. The grievance is dated Sept. 13, the day before Mr. Nelson's release from jail.

While Ms. de Roos testified she had not seen the first letter from the hospital before calling Ms. D'Arpino on Aug. 16, Mr. Nelson testified that when he talked to Ms. de Roos on Aug. 16, she told him about a letter that she said talked about abandoning his employment. (Phone records confirm two incoming calls on the collect-call service made to Ms. de Roos's phone on Aug. 16, both prior to her call to Ms. D'Arpino.)Nevertheless, after two weeks in jail, he said he did not ask his wife to tell the hospital why he was absent from work. "I understand I should have provided details, but I didn't know what to do," he said.

Mr. Nelson agreed he had not told the employer that he had moved away from the Emmett address, which he said had likely been in 2014. He agreed this was an obligation of his, and that he knew how to do it - as established by forms and emails he had filed with the employer in 2000, 2007 and 2010 advising of a change in address. He also said he had moved so much that he had mail forwarded to the Emmett address, and agreed his T4 slips for tax years from 2012 to 2017 were sent to Emmett Avenue.

Mr. Nelson was also shown a letter dated May 28, 2018, from Ms. D'Arpino's predecessor as his manager. This letter is similar to those signed by Ms. D'Arpino less than three months later, warning Mr. Nelson that he was on an unauthorized absence and his job was in jeopardy pursuant to Article 9.04 (c), which was set out in full in the May letter.While it was sent to the Emmett address, Mr. Nelson acknowledged he had received it at his work email address.Mr. Nelson said he noticed the Emmett address on the letter at the time, but thought he would tell the hospital at some point later that it was incorrect. He also said he read the letter, including the excerpt from the collective agreement, and knew that his employment was in jeopardy if he missed three shifts without giving a reason. However, he said, in May he was able to speak to his manager and obtain proper documentation to support his absence.

Asked why he did not tell his wife to advise the hospital of the real reason for his absence, he cited legal advice he had received, and said he was in shock over his arrest. He agreed he knew his job was in jeopardy before the termination.

Ms. de Roos said she contacted the union at some point after the termination.She said she told the union representative that Mr. Nelson was in jail. Yet two sets of notes of a grievance meeting taken by human resources representatives on Sept. 20 - not attended by Mr. Nelson, although he had been released by then - have the same union representative asking for Mr. Nelson to be reinstated "while he goes through the program and help him get better" and "while he goes through his program and work with him to get better."Both of the human resources staff members at the meeting, Diane Pestrin and Emily Risen, testified that nothing was mentioned at the grievance meeting about the true reason for Mr. Nelson's absence.

Ms. Pestrin testified that Mr. Nelson was considered to be on an unapproved and unpaid leave from July 25 on, when he first called in sick. She said could not recall Ms. D'Arpino mentioning a new address for Mr. Nelson.

Ms. Risen said letters to employees are sent to the address on file, unless the employee makes the change directly. She said she did not know whether there are any exceptions to this policy.

Parties' Arguments

The union's main point is that Mr. Nelson, through his wife, made a request for a leave of absence from the hospital, and that this request was never considered. The employer is required to act in a reasonable manner when an employee requests a leave, the union argues. Here, the union says, while the employer was never advised that Mr. Nelson was in jail, he and his wife had a reasonable basis for not providing that information, given the evidence that this was consistent with the legal advice he had been given. Many people faced with this situation for the first time, as Mr. Nelson testified he was, would do the same, the union argues.

The question is not whether the hospital had enough information to consider the request for a leave of absence, but whether it is fair and just to fire a 25-year employee now that the facts and reasons for what occurred are known, the union says. The employer here is at least partly at fault, as it sent letters to an address that it was told was incorrect.

The union argues that upholding the termination would be grossly unfair to Mr. Nelson, given that he was in no position to contact the employer, that the employer knew that at least one of its letters had not been received, and that the employer did not act on the information when it was given the correct address. On this last point, the union asks me to prefer Ms. de Roos's evidence that she gave Ms. D'Arpino the new address, over Ms. D'Arpino's evidence that she did not.Ms. D'Arpino described a very brief phone conversation with Ms. de Roos, even though the phone records show it lasted five minutes.

Even if Ms. D'Arpino's evidence is accepted, the union argues, the hospital clearly did nothing to advise Ms. de Roos that Mr. Nelson's job was in jeopardy and took no steps to verify that she was, in fact, Mr. Nelson's wife and was speaking on his behalf. It appears the hospital was more interested in terminating Mr. Nelson's employment than in reaching him, the union says.

While the union acknowledges that Mr. Nelson was aware of the consequences of missing work, this is precisely the reason he had his wife contact the hospital to request a leave of absence. The hospital never advised that it was not considering the leave request because it did not come directly from the employee, the union argues, nor was Mr. Nelson ever told he would lose his job if he did not contact the hospital himself.Had he been told, common sense dictates that he would have taken more steps to ensure his job was kept open.Instead, the hospital was uncommunicative with the grievor and his wife, the union says.

The union referred to the following cases: Re Uniroyal Goodrich Tire Manufacturing and USW Local 6772003

CarswellOnt 9674 (Haefling); Re Bombardier Transportation and CAW(2003) 121 L.A.C. (4th) 84 (Liang); Re

Alcan Canada Products and USW(1974) 6 L.A.C. (2d) 386 (Shime); Horizon Health Network v Lynch(2017) 281 L.A.C. (4th) 113 (N.B. Queen's Bench); Re B.C. Rail and Cdn. Union of Transportation Employees(1985) 21

L.A.C. (3d) 257 (Hope); and Re Burns Meats and UFCW Local 8321995 CarswellMan 835 (Hamilton).

The hospital notes that deemed termination clauses such as the one being relied upon here do not require a standard of just cause. The employer need only show that the factual conditions have been met, and then the termination is automatic; if those factual conditions have been established, the onus is then on the union to show that the provision should not apply to the specific facts.

The hospital argues that Article 9.04 (c) contains four conditions, all of which are necessary to support a deemed termination. First, the employee must be absent from scheduled work for three or more working days; there is no dispute that this condition is satisfied here.Second, the absence must be "without notifying the hospital;" here, the hospital acknowledges that Mr. Nelson's wife did notify the hospital on his behalf. Third, the absence must be "without...providing a reason;" this aspect is fatal to the union's case, the hospital argues, as even on the union's evidence, Mr. Nelson and his wife intentionally did not disclose any reason for the absence. The clause requires the employee to give a reason so that the hospital can evaluate whether the employment relationship should continue, the employer argues; the union, it says, is suggesting that employees can simply call an employer to state they will be absent, not give a reason, and not expect any consequences.Fourth, the clause requires that the reason be "satisfactory to the hospital;" while the hospital concedes this does not give absolute discretion for the employer to reject a reason, it does argue that the wording gives the employer more discretion to reject a reason than the more objective-standard language of "satisfactory reason" that is found in some deemed termination clauses.

The hospital argues that both the grievor and his wife had credibility issues, with inconsistencies between their evidence and within the testimony that each of them gave. The hospital urged me to accept Ms. D'Arpino's evidence where it conflicted with Mr. Nelson's and Ms. de Roos's.

The hospital argues that Mr. Nelson could have been subject to the deemed termination clause even before he was arrested. At that point, he had missed more than three scheduled shifts, and had not provided any medical support for the absence. He testified that he had a medical appointment the day after the incident, but provided no independent evidence of that. Meanwhile, he was at a bar for two hours on a day that he had called in sick. Further, Mr. Nelson's stated reasons at the hearing for being off was inconsistent with the reason given by his wife, who said he was struggling with depression. In summary, with no indication that the sick leave before Mr. Nelson's arrest was legitimate, and no reason satisfactory to the hospital provided, the deemed termination clause should apply to Mr. Nelson even for the period before the arrest, when he was calling in regularly, the hospital argues.

As for the period after the arrest, the hospital says the grievor and his wife intentionally withheld information from the employer. They each cited legal advice, but the hospital argues that their actions are more consistent with a decision to keep the employer in the dark about the real reason for the absence, namely that he had been charged with serious crimes and was in custody. Whether Ms. D'Arpino was asked to return the voice mail left by Ms. de Roos on Aug. 6 is immaterial, since it is clear that Ms. D'Arpino would not have been given any more information about the reasons for the absence, the hospital says.

While there was plenty of evidence regarding the letters from the hospital sent to one of Mr. Nelson's previous addresses, the hospital argues that it is under no obligation to send any letters warning employees their jobs are in jeopardy in order to rely on the deemed termination clause. This employer should not be penalized for warning Mr. Nelson and waiting nearly a month before terminating his employment.Further, an employee is entitled to tell the employer where correspondence should be sent - it does not have to be to the employee's residence - and here, a condominium belonging to the grievor's grandparents was where he had asked the employer to send correspondence, including his T4 slips, and where he knew correspondence was addressed as recently as two months before his absence.

The employer relied on the following cases, some of which are referred to below: Faryna v. Chorny1951 CanLII

252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A);Re Cargill Meats Canada and UFCW Local 1752012 CarswellOnt

5757 (Surdykowski); Re American Standard and Glass Moulders Pottery, Plastic and Allied Workers1990

CarswellOnt 4625 (Stewart); Re Amhil Enterprises Ltd. and Workers United 2015 CarswellOnt 6892

(Surdykowski); Re George Brown College and OPSEU1994 CarswellOnt 1847 (Brent); Re James Bay General

Hospital and PSAC2004 CarswellOnt 10457 (Devlin); Re Toronto District School Board and CUPE Local 4400

(2000) 166 L.A.C. (4th) 254 (Albertyn); Re Sunnybrook Health Sciences Centre and Sunnybrook Hospital Employees' Union1992 CarswellOnt 5422 (Barrett); and Re City of Toronto and CUPE Local 416(2018) 295 L.A.C. (4th) 99 (Wilson).

In reply, the union notes that Mr. Nelson called in sick several times before his arrest, so that the deemed termination clause should not apply for this period. Mr. Nelson should not be expected to have to document the medical appointment he made.The union also asks me to draw an adverse inference from Ms. D'Arpino's failure to retain the voice mail from Ms. de Roos, even though she said the request made by Ms. de Roos was unusual.

Regarding the case law, the union acknowledges that some of the decisions dismissing grievances over deemed terminations have similarities to this case, but says I should depart from those awards. This case involves a layperson who has never been in trouble with the law, was terrified and overwhelmed, and had been told not to discuss the situation. His decision not to be forthcoming with the employer was not perfect, the union says, but it was reasonable in the context. Many laypeople would be reluctant to say anything to their employer in this situation, the union argues.

Decision

This case involves a clause of the collective agreement that deems an employee terminated if that employee is absent for three or more consecutive scheduled work days "without notifying the Hospital of such absence and providing a reason satisfactory to the Hospital."

Several accepted and relevant principles can be gleaned from the arbitration decisions on this type of "deemed termination" clause, as follows:

• Deemed termination clauses are not the same as "just cause" clauses; a deemed termination is not considered a disciplinary matter, and the onus is on the union to establish that it does not apply.(See Cargill Meats, and Amhil Enterprises;citations of all cases are above.)
• If the union does not discharge its onus, the arbitrator does not have discretion to reinstate the grievor or to otherwise vary the penalty. (see Cargill Meats, Amhil Enterprises, George Brown College.)
• The phrase "reason satisfactory to the Hospital," gives the employer more discretion to reject an employee's reason for absence than the more objective standard implied in clauses containing the phrase

"satisfactory reason."(See American Standard, George Brown College.)

• However, given the harsh consequences to employees, deemed termination clauses must be strictly construed. (See Amhil Enterprises.)
• Nevertheless, the fact that a grievor did not intend to abandon the position is not relevant to whether the conditions in a deemed termination clause are satisfied. (See George Brown College.)
• Where the employer is made aware of the reason for the absence before the termination of employment, and that reason satisfies the wording of the clause ("reason satisfactory to the employer," "satisfactory reason," "reasonable excuse," etc.) the clause will not apply and the grievor will be reinstated. (See James Bay General Hospital, Toronto District School Board.)
• The employer must assess in good faith the reason given for the absence, but where no explanation for the absence is provided, the employer has nothing to consider, and the employee can be deemed terminated. (See

City of Toronto.)

Here, it is important to consider what information the hospital had when it issued the termination letter dated Aug. 22, 2018. Mr. Nelson had been off work since July 25. During his first week off, he called regularly to advise that he was sick. The last call he made was on Aug. 2, saying he would be back at work on Aug. 7, after the long weekend. On the night of Aug. 2, he was arrested and incarcerated. The hospital was never given this information, even in the grievance meeting that took place after he was granted pre-trial release on Sept. 14.Instead, Mr. Nelson's wife, Ms. de Roos, left a voice mail for his manager on Aug. 6, advising that he would not be at work and that he wanted a leave of absence. While this constituted notice of the absence, it falls short of providing a reason, let alone a reason satisfactory to the hospital. Meanwhile, the posted six-week schedule had Mr. Nelson on duty each day from Aug. 7 to 10 and Aug. 13 to 17.

After the Aug. 6 voice mail from Mr. Nelson's wife, there was no communication from the employee or on his behalf until Aug. 16, when Ms. de Roos talked to Mr. Nelson's manager, Ms. D'Arpino. Again, no information was revealed on the actual reason for Mr. Nelson's absence, although Ms. de Roos said she told Ms. D'Arpino that Mr. Nelson had been attacked and beaten but was not in the hospital, and that there was a "legal matter." Throughout this period, no medical documentation to support a sick leave was provided, despite a request from the employer.

In summary, the hospital's last information from Mr. Nelson directly was that he was off sick and would be back on Aug. 7. Despite the later calls from his wife, the employer would not have any reason to believe that Mr. Nelson was requesting a leave of absence because he was in jail; rather, when Mr. Nelson failed to return to work when he said he would, hospital management was faced with a request for a leave, without any reasons given, from Mr. Nelson's wife.

One focus of the evidence was the correspondence sent to Mr. Nelson at the Emmett Avenue address on file with the hospital. This address was a condominium owned by his grandparents, where Mr. Nelson had lived for a time several years previously. The first point to be made on this issue is that the collective agreement imposes no obligation on the hospital to warn an employee in Mr. Nelson's situation that he was placing his job in jeopardy by missing shifts without providing a reason. In fact, as is apparent from the wording of the clause, the obligation is on the employee who has missed shifts to notify the hospital and to provide a reason satisfactory to the hospital. The hospital is not required to chase after an employee who is missing work and not calling in. Nevertheless, the hospital issued two warning letters after Mr. Nelson stopped calling, sending them by courier to the address the hospital had on file, and to his work email address, which the evidence indicated he could retrieve from outside the hospital (although not from jail). Although not a requirement, this was good practice, and bolsters the view that the hospital was not moving to terminate Mr. Nelson at the earliest possible opportunity.

The hospital's evidence is that an employee's address for correspondence does not have to be the employee's residence, and I accept this.Furthermore, Mr. Nelson's evidence was that he knew as recently as May 2018 that the hospital was sending material to the Emmett Avenue address, but that he simply had not bothered changing it, as he had done when he had moved previously. Ms. de Roos testified that she gave Ms. D'Arpino the correct address on Aug. 16. If this were true, the hospital could be faulted for not following up and sending the Aug. 16 letter to the new address as well as the one on file. However, I do not accept Ms. de Roos's evidence on this point, or on many of her other statements about the Aug. 16 telephone conversation with Ms. D'Arpino, for the following reasons. First, the most glaring problem with Ms. de Roos's evidence is her insistence that Ms. D'Arpino said during that call that a letter had gone out that morning. However, there is convincing documentary evidence that this letter was not even in existence when that phone call took place. Second, the evidence was that the first letter, sent on Aug. 13, was returned to the hospital by the courier company, and that neither Mr. Nelson nor his wife had access to his work email, where the letter was also sent. This raises significant doubt that Ms. de Roos knew anything about this letter when she talked to Ms. D'Arpino on Aug. 16. Yet Ms. de Roos testified that she told Ms. D'Arpino that she was aware that letters had been sent to the Emmett Avenue address. Given the circumstances, I do not accept that this happened. In my view, Ms. de Roos could not have brought up the letter sent to Emmett Avenue because she did not know about it until after the Aug. 16 call to Ms. D'Arpino.

In addition, I find it unlikely that Ms. de Roos would not have asked about the content of the two letters, had she known about first letter and then been told about the second one during the Aug. 16 phone call. Yet she testified that she did not ask, nor apparently did she ask Mr. Nelson's grandparents or mother about the first letter, even though she says she knew about it. Further, I accept Ms. D'Arpino's evidence that she would have passed on to the human resources office the new address had she been told, especially given that the letter had not actually been sent yet. Finally, although the union pressed the idea that the duration of the call suggested that more was discussed than what Ms. D'Arpino recounted, I place no weight on this factor, as the duration of the call gives no indication of what was discussed.

I conclude from the above that there was never a discussion between Ms. de Roos and Ms. D'Arpino about the letters or the addresses where they were being sent, as it is more probable that Ms. de Roos was unaware of any letters when she talked to Ms. D'Arpino, hearing about them and then seeing them only later.

The union relies on Ms. de Roos's request for a leave of absence for her husband.Perhaps not surprisingly, the union did not refer to the collective agreement language on personal leaves (Article 15.09), as it is clear Mr. Nelson did not comply with that clause, which reads in relevant part as follows:

The Hospital may grant leave of absence without pay to an employee for valid personal reasons, provided that such a request is made in writing at least two (2) weeks in advance if possible.

Aside from the fact that this language contemplates a request made by the employee in writing in advance of the proposed leave, it is important to note that, like the deemed termination clause, the employee is to provide a reason for the absence. Given this language, I do not accept Ms. de Roos's suggestion that Ms. D'Arpino led her to believe that the leave of absence had been granted.

Both the leave of absence clause and the deemed termination clause give the employer some discretion to assess whether there is justification for the absence.Here, the employer was given no basis on which to consider the request for the leave of absence, nor was it given a reason for Mr. Nelson's failure to show up to work.

Some of the cases cited by the union concerned employees who were denied leaves of absence related to incarceration around the time of a trial or before anticipated incarceration. In all those cases, the leave was properly requested, with reasons - unlike here - and denied. In the Burns Meatcase, the grievor was ordered reinstated after company sent a warning letter to the wrong address in a deemed termination case. However, in that case, the employer was aware of the correct address, and the collective agreement, unlike here, required the company to make a "reasonable effort" to locate the employee and specified that a registered letter to the employee's last known address constituted a reasonable effort. On that basis, the case is distinguishable from this one.

Here, the evidence leads me to the conclusion that Mr. Nelson made a conscious decision not to disclose to the hospital his criminal charges and incarceration. Mr. Nelson testified that he knew the rules. He agreed that he had read and understood a letter sent to him by his previous manager less than three months prior to his termination during a previous absence. That letter warned him his job was in jeopardy and set out Article 9.04 (c) in full.In that case, he said, he was able to produce the necessary documentation to satisfy the employer.

However, in this case, he decided that, rather than give the employer the true reason, or any reason, for his failure to attend work, he would simply have his wife request a leave of absence without providing any details.Mr. Nelson cited his legal advice, but in my view, he is making too much of this. No one told him specifically not to advise the employer he was in jail.More likely, he was told not to discuss the circumstances surrounding the incident that led to the arrest and criminal charges. Until after his termination, neither he nor his wife sought the advice of his union or anyone else who was familiar with the collective agreement, even though he knew from the previous absence that his job was in jeopardy.

In summary, even though there were plenty of opportunities for Mr. Nelson or his wife to advise the employer of the true reason for the absence - including the Aug. 16 telephone conversation between Ms. de Roos and Ms. D'Arpino, which followed three lengthy phone calls between Ms. de Roos and Mr. Nelson that day - Mr. Nelson made a decision not to be forthright. One telling fact is Ms. de Roos's uncontradicted testimony that she told the union about the jailing before the grievance meeting. Yet the union told the employer at the grievance meeting, misleadingly, that Mr. Nelson was in a "program," suggesting there might be a disability issue involved. It is not difficult to infer that even though the union evidently knew the truth, it had been instructed by the grievor not to reveal it. The union representative who talked to Ms. de Roos and who attended the grievance meeting was present throughout the hearing but not called to testify.

My conclusion is that the hospital acted reasonably and in accordance with the collective agreement, given the information - or lack thereof - that it had at the time. While I do not agree with the hospital that the deemed termination clause could have been invoked even before Mr. Nelson was arrested, I do agree that the conditions necessary for a deemed termination were satisfied once he missed three shifts after his arrest.

The consequences for Mr. Nelson are severe. He has lost a job that he had held for 25 years, even though he had no intention of abandoning his position with the hospital. I fully understand the union's view that this result is a harsh injustice to Mr. Nelson; however, it is the result dictated by the agreement the parties have made and the rules that Mr. Nelson acknowledged he knew. It was open to the hospital to revisit its decision once it knew the true reason for the absence, but it was under no obligation to do so. Even though I have some sympathy for Mr. Nelson's desire to keep private his criminal charges and incarceration, I cannot change the parties' agreed provisions governing absences such as his. There is no conclusion other than that he was absent for several weeks without "providing a reason satisfactory to the Hospital," as required by the collective agreement.

For the reasons above, the grievance must be dismissed.

___________________

Lorne Slotnick, Arbitrator

May 9, 2019

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