Last-chance agreement not signed but enforced by employer
A long-time employee with multiple disability leaves in the past was eventually terminated after he failed to improve his attendance.
Jean-Louise Arseneau worked for Glencore Canada at the Belledune, N.B., smelter since 1980. He took multiple months of sick leave in 2005 and 2006 and entered into the weekly indemnity and long-term disability plans beginning in 2007.
Arseneau was off work for seven years, but he returned to work full-time on Feb. 8, 2016.
In March 2016, Arseneau met with Devan Corrigan, HR manager, to see if he could qualify for early retirement, but he was told he wasn’t eligible.
The employer had an attendance-management policy (AMP) that was monitored by Barbara Russell, labour relations coordinator. On July 13, Russell met with Arseneau and he was placed into the AMP at stage one for being absent for 80 per cent of time between April and June.
On Oct. 31, after missing 10 per cent of his scheduled time, he was placed into step two of the AMP.
Finally, on Jan. 10, 2017, Arseneau entered step three after missing 17 per cent of his shifts.
A last-chance agreement was prepared on Dec. 6, after Arseneau missed more time, but the letter was not signed by Arseneau or the United Steelworkers (USW), Local 7085, representative who was at the meeting.
In April 2017, Arseneau again spoke with Corrigan and advised him that he was facing criminal charges and there was a trial scheduled for the fall.
Another meeting was held on Oct. 25, and Arseneau told the employer that he plead guilty to two counts and would probably be receiving a jail sentence, most likely in January 2018. He handed a letter to Corrigan but it wasn’t read until after the meeting.
The letter was written by Arseneau’s wife and the issue of early retirement was raised, which was denied again.
Arseneau was terminated on April 5 after missing 48 per cent of time during the previous three-month period.
During the arbitration, Arseneau testified that he had been suffering from leg pain and depression, which necessitated his absences. Glencore said that was the first time it heard about such a reason, and there was no medical evidence submitted to back the claim.
The union argued that during each of the multiple disciplinary hearings, the employer failed to ask if Arseneau needed accommodation.
Arbitrator George Filliter dismissed the grievance. “(Arseneau) was unable to meet the attendance expectations of the employer as set out in the bilateral AMP and the employer took steps too and no-fault termination was appropriate.”
“I find the employer counseled (Arseneau) on five separate occasions before deciding to terminate him. Each time, the employer reminded him of his rights to accommodation. At no time did (Arseneau) provide any information to the employer or ask for accommodation. In my view, (Arseneau) was made aware of the possible ramifications for his continued absences and did nothing,” said Filliter.
It was Arseneau’s behaviour that sealed his fate, said the arbitrator.
“Furthermore, the evidence of Corrigan was (Arseneau) had on three occasions, in 2016 and 2017, inquired about the possibility of early retirement. During these meetings, the grievor admitted he did not want to be at work ,” said Filliter.
As well, Arseneau’s impending jail sentence meant he would be “incarcerated for four months in jail, which of course would make him unable to attend at work during this period of time.”
Reference: Glencore Canada and United Steelworkers, Local 7085. George Filliter — arbitrator. Jessica Bungay for the employer. Euclide Hache for the employee. Nov. 8, 2018. 2018 CarswellNB 462
Jean-Louise Arseneau worked for Glencore Canada at the Belledune, N.B., smelter since 1980. He took multiple months of sick leave in 2005 and 2006 and entered into the weekly indemnity and long-term disability plans beginning in 2007.
Arseneau was off work for seven years, but he returned to work full-time on Feb. 8, 2016.
In March 2016, Arseneau met with Devan Corrigan, HR manager, to see if he could qualify for early retirement, but he was told he wasn’t eligible.
The employer had an attendance-management policy (AMP) that was monitored by Barbara Russell, labour relations coordinator. On July 13, Russell met with Arseneau and he was placed into the AMP at stage one for being absent for 80 per cent of time between April and June.
On Oct. 31, after missing 10 per cent of his scheduled time, he was placed into step two of the AMP.
Finally, on Jan. 10, 2017, Arseneau entered step three after missing 17 per cent of his shifts.
A last-chance agreement was prepared on Dec. 6, after Arseneau missed more time, but the letter was not signed by Arseneau or the United Steelworkers (USW), Local 7085, representative who was at the meeting.
In April 2017, Arseneau again spoke with Corrigan and advised him that he was facing criminal charges and there was a trial scheduled for the fall.
Another meeting was held on Oct. 25, and Arseneau told the employer that he plead guilty to two counts and would probably be receiving a jail sentence, most likely in January 2018. He handed a letter to Corrigan but it wasn’t read until after the meeting.
The letter was written by Arseneau’s wife and the issue of early retirement was raised, which was denied again.
Arseneau was terminated on April 5 after missing 48 per cent of time during the previous three-month period.
During the arbitration, Arseneau testified that he had been suffering from leg pain and depression, which necessitated his absences. Glencore said that was the first time it heard about such a reason, and there was no medical evidence submitted to back the claim.
The union argued that during each of the multiple disciplinary hearings, the employer failed to ask if Arseneau needed accommodation.
Arbitrator George Filliter dismissed the grievance. “(Arseneau) was unable to meet the attendance expectations of the employer as set out in the bilateral AMP and the employer took steps too and no-fault termination was appropriate.”
“I find the employer counseled (Arseneau) on five separate occasions before deciding to terminate him. Each time, the employer reminded him of his rights to accommodation. At no time did (Arseneau) provide any information to the employer or ask for accommodation. In my view, (Arseneau) was made aware of the possible ramifications for his continued absences and did nothing,” said Filliter.
It was Arseneau’s behaviour that sealed his fate, said the arbitrator.
“Furthermore, the evidence of Corrigan was (Arseneau) had on three occasions, in 2016 and 2017, inquired about the possibility of early retirement. During these meetings, the grievor admitted he did not want to be at work ,” said Filliter.
As well, Arseneau’s impending jail sentence meant he would be “incarcerated for four months in jail, which of course would make him unable to attend at work during this period of time.”
Reference: Glencore Canada and United Steelworkers, Local 7085. George Filliter — arbitrator. Jessica Bungay for the employer. Euclide Hache for the employee. Nov. 8, 2018. 2018 CarswellNB 462
