Toronto city worker dismissed after jail time, no contact with boss

No written explanation for absence presented by employee

A heavy-equipment operator for the waste division of the City of Toronto was dismissed after he spent 20 days in jail without updating the employer.
David Hatch had worked for the city since Aug. 28, 2017, when on July 29, 2017, he told his supervisor “something had come up and he didn’t know if he could make it to work on Monday.” 
He promised to contact another supervisor on Monday and provide the employer with further details to explain his no-show.
Hatch turned himself in to the Toronto Police on July 29 and he was charged with assault and aggravated assault. 
On July 31, Hatch’s father called Brad Whittock, supervisor, and told him about the absence. When he was asked if Hatch was sick, his father said he didn’t know.
The next day, his father again called Whittock and told him the same thing. But on Aug. 3, Hatch’s lawyer contacted Whittock and another supervisor and explained what had happened to Hatch.
The lawyer said he was attempting to arrange bail and he was hopeful Hatch could return to work the following week. 
But on Aug. 8, Hatch hadn’t returned to work. Whittock then called Hatch’s father and said, “It was extremely important that the grievor call the City as soon as he was able.”
Hatch had limited access to a pay phone while incarcerated. 
Between Aug. 9 and Aug. 25, there was no further contact between the City and Hatch or his representatives. He was fired on Aug. 25.
Hatch was eventually released on Dec. 5 and he was ordered to obey a peace bond for 12 months as a result of the charges.
The union, Toronto Civic Employees’ Union, Local 416 of the Canadian Union of Public Employees (CUPE) grieved and argued the employer knew Hatch was in jail and had limited access to a phone.
But the employer countered and said that because Hatch didn’t provide written notice and he was absent for more than 10 days, the dismissal was justified. 
The collective agreement called for an employee to lose employment if “he is absent without written notice and without a satisfactory reason to the City in excess of ten (10) calendar days from the commencement of absence.”
Arbitrator Matthew Wilson agreed and dismissed the grievance. 
“As the stipulated facts make clear, (Hatch) did not provide written notice of his absence nor did he provide an explanation for his absence. There was nothing for the City to consider at the time the termination letter was issued to the grievor. Thus, I conclude that (Hatch’s) employment was properly terminated pursuant to article 27.06 (iii) of the collective agreement.” 
The blame was due to Hatch’s own actions, according to the arbitrator. 
“(Hatch’s) limited access to a telephone while he was in jail is not persuasive since he could have easily advised his lawyer or his father that the City should be updated on the details of his absence,” said Wilson. 
“If that occurred, the City would have to persuade me that the reason was not satisfactory as that term is used in article 27.06. But, that did not occur as no rea-son was ever provided to the City,” said Wilson.
“At some point during that period, it was incumbent on (Hatch), either himself or through his agents, to advise the City of the reason for his absence.” 
“At the very least, once he was denied bail and was aware that his incarceration was being extended, he had an obligation to notify his employer either directly or through his agents,” said Wilson.
Reference: City of Toronto and Toronto Civic Employees’ Union, Local 416. Matthew Wilson — arbitrator. Swarna Perinparajah for the employer. Kiran Kang for the employee. Aug. 27, 2018.

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