SaskPower employee terminated for not attending accommodation meetings

Employee’s ‘misconduct’ consisted of one refusal: Arbitrator
|Canadian Labour Reporter|Last Updated: 04/22/2019

After a customer-care worker took time off due to asthma and allergies in the workplace, she was fired when she refused to meet with the employer in the office due to potential allergens affecting her health. 

Lisa Marcotte worked as a customer service representative in the Fletcher Road office of SaskPower in Saskatoon, beginning in November 2015. Shortly after she moved to the location, Marcotte discovered some workers wore scents which exacerbated her condition.

She told manager Cheryl Sanders that coworkers’ scents were bothering her. Sanders held an all-staff meeting and reiterated SaskPower’s policy that said: “Please abide by the corporate no-scent policy by not wearing strong perfumes/colognes or eating strong aromatic foods at your work station. Many people have adverse or allergic reactions to some smells.”

Marcotte continued to suffer and in April 2016, she took four days off after her asthma flared up.

On April 29, Chad Ku, the manager who replaced Sanders, again advised all employees not to wear scents or they would be disciplined or terminated. But on May 3, Marcotte took more time off due to the asthma.

Marcotte took further time off and her doctor wrote a note that said she would best benefit from a completely scent-free environment. 

However, the corporate physician reviewed the note and advised Marcotte she would be able to return on May 24, which contradicted her own doctor’s note that called for her to be off work until May 30.

Marcotte didn’t return to work on May 24 and she filed an official complaint alleging harassment from coworkers who continued to wear scents. A meeting was set for June 1, but Marcotte didn’t attend.

SaskPower then advised Marcotte that she was in a “no-pay” situation as she had used up all her vacation and sick time. 

On June 3, the corporate doctor wrote an email and urged Marcotte to assist “in all efforts to address the concerns brought forward.” Marcotte was told to attend a June 10 meeting or it would be considered “gross misconduct” if she didn’t. 

On June 9, Marcotte requested the meeting be held on a different site from the Fletcher Road office but the employer didn’t budge from its original request. 

Marcotte didn’t show up for the meeting.

A dismissal letter was couriered to Marcotte later that day: “This letter follows multiple attempts to get you back into the workplace. On June 1, 2016, and twice on June 10, 2016, the corporation attempted to get you to report to work and all attempts were met with your refusal to cooperate and to follow such work direction. The company has deemed your behaviour as culpable and unacceptable. Based on your multiple refusals to report to work, we have concluded that your actions constitute gross misconduct.”

The union, Unifor, Local 649, grieved the firing and argued that Marcotte was pressured to return from a legitimate sick leave and her request to meet at a scent-free neutral site was ignored.

SaskPower countered and said that because she refused a direct order to participate in an accommodation meeting, the termination was justified. 

Arbitrator Sheila Denysiuk disagreed and ordered the termination be substituted with a one-day unpaid suspension. 

“Marcotte had no prior discipline. The misconduct, such as it was, was an isolated incident in her employment history. She relied on advice from her doctor, her psychologist and others, and though perhaps misguided in following the advice, this is certainly a consideration in assessing the disciplinary response,” said Denysiuk.

SaskPower overreached when it fired Marcotte, said Denysiuk. “The misconduct consists of one refusal in the context of a medical leave arising from what would surely be viewed as a disability. It would be quite different if there were multiple refusals over a period of months. Surely, more serious misconduct is required to justify termination.”

“Although the refusal to attend the meeting is insubordination, it must be noted that Marcotte was respectful in her interactions with management in the lead up to the meeting and in her communication with management throughout. There was no evidence of derogatory comments or insolent behaviour that would otherwise justify significant discipline.”

Reference:

SaskPower and Unifor, Local 649. Sheila Denysiuk — arbitrator. Susan Barber for the employer. Gary Bainbridge for the employee. Feb. 28, 2019.

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