A maintenance worker at a Nova Scotia care facility was fired just two days after returning to work on a last-chance agreement (LCA).
The termination, though, had nothing to do with the LCA. That’s because his behaviour went directly to the heart of trust in the employer-employee relationship, an arbitrator ruled.
The background
George Borden worked as a painter/maintenance worker for Northwood Care in Nova Scotia. A long-tenured worker, he had been on the job for 40 years before being terminated, and he was 65 at the time of the arbitration hearing.
The employer’s decision to fire Borden was sparked by a conversation he had with Patrick Doonan, the manager of building services and his supervisor, on June 24, 2021. There was disagreement between the parties about what exactly was said.
Last-chance agreement
At the time of dismissal, Borden was subject to a last-chance agreement (LCA) as a result of Northwood Care’s decision to terminate him earlier, on April 8, 2021. Borden was fired at that point for alleged sexist and gender-based remarks, together with verbal and physical threats to a co-worker and a refusal to follow orders.
The union grieved the April 8 termination and entered into a negotiation that resulted in a rehire on a LCA dated June 14, 2021. It covered a number of terms and conditions to last 36-months, including:
- conduct himself in a professional, appropriate, respectful manner towards coworkers, staff, management and residents;
- follow and abide by the Employer’s Civility and Harassment Free Workplace Policy and all other Employer Policies; and
- refrain from making any inappropriate remarks, comments, statements, gestures and actions including, but not limited to, those of a threatening or sexual nature, gender biased or with respect to any of the prohibited grounds set out in the Human Rights Act of Nova Scotia and Regulations: Ex. U4, Tab 1, paras.3(a)-(c).
Any failure to meet or abide by the LCA could result in termination. In that event, the only right to grieve would be over whether the conduct happened — an arbitrator would have no jurisdiction to substitute a lesser penalty.
The LCA included an unpaid suspension from April 8 to June 21, 2021 inclusive. Borden’s first day back was Tuesday, June 22, 2021. He worked for two days before being fired again.
The conversation: The employer’s view
On June 24, 2021, Borden approached Doonan while they were on a morning smoke break. Borden told Doonan he would be going off work to use up his sick leave until he retired in October 2021.
Donnan was shocked by this comment, and asked whether Borden was telling him that as his manager.
Borden said “yes.” Doonan then asked whether he understood that he would have to pass that comment on to management, and Borden said he understood.
Doonan also testified he had not received any medical note from Borden to indicate he was ill, disabled or otherwise unable to work. Nor did he ask him for such documentation.
Doonan was not happy about Borden’s plan, as it would leave him short-staffed — he only had three painters, so losing Borden represented one-third of his workforce.
The arbitrator noted that Doonan had 289.57 hours in his sick bank, which would have covered roughly 3.6 biweekly pay periods — taking him to about mid-August 2021.
The conversation: The employee’s view
Borden denied parts of Doonan’s version. He said he never intended to retire in October 2021 and planned to work until age 67 when his wife was able to retire.
He did agree the pair spoke during the break on June 24, and that he told Doonan he would be going off on sick leave until October. He said he was “95 per cent sure” he had given him a note from his doctor.
Borden testified that the note would have been from a medical professional, but was a bit hazy on whether it was from a doctor, his chiropractor or a massage therapist, the arbitrator said.
At one point, he said perhaps he had given the note directly to the employer’s nurse. But when she testified that no such note existed, Borden then said he was now “100 per cent sure” he had given a note to Doonan.
The employer’s response
Doonan approached his manager, Surrya Anjum, about the conversation with Borden shortly after it happened.
She was concerned because he had just returned to work under a LCA and because she had no information indicating he was sick or suffering from any disability or injury.
Anjum discussed this with Caroline Campbell, corporate director of people services (and her direct report.) They concluded Borden had not been acting in good faith and that he had signed the LCA in order to go off work and use his sick time.
A decision was made to terminate him and a letter was drafted dated June 28, 2021.
The medical notes
The union entered two medical notes into evidence at the hearing. The first was from his chiropractor, dated July 8, 2021. It read:
Mr Borden presented to me on June 7/21 with acute left arm and neck pain + numbness and tingling. It was recommended that he reduce activities that aggravated this presentation. He was diagnosed with moderate/severe thoracic outlet syndrome.
The second note, dated Sept. 26, 2021, was from his family doctor. It read:
Mr Borden has degenerative disc disease in his neck and back, as well as facet joint arthritis. He has bilateral shoulder pain, and symptoms of carpal tunnel neuropathy in his left hand; arm and hand pain; numbness and weakness with a reduced grip strength. He also has intermittent sciatica depending upon his activity level and type of activity. As a result of his neck arthritis his ability to look upwards is compromised, and his shoulders limit his ability to use his arms if raised above his shoulder level and his left hand prevents two handed gripping.
These limitations combine and contribute to Mr Borden’s inability to continue working.
Both notes were provided to the employer’s counsel on March 31, 2022.
The arbitrator’s ruling
In termination grievances, the onus is on the employer to establish just cause, the arbitrator said.
It concluded that Borden:
- told Doonan he was going off work until October
- he intended to use his sick leave while he was off
- he was not physically disabled from working as of June 24 or at any point thereafter or, at least, until September 2021.
The onus is on employees to justify their absence when the miss work, the arbitrator said. In other words, there was no duty on an employer to investigate an employee’s statement that they could not work due to illness or disability.
“The decision to discipline (and in this case terminate) is not negated because the employer did not ask the grievor for confirmation that he was unable to work and had to go on sick leave,” the arbitrator said. “The onus of proof remains on the employee.”
“I note as well that (Borden) did not say that he was told by his doctor to go off on sick leave until October. Indeed, he never explained why he expected to be returning in October as opposed to any other month,” the arbitrator said.
Therefore, the conclusion was that Borden wanted to go off on sick leave on his own volition, not because he was unable to work but because he wanted to use up his sick leave.
“Whether this was because he wanted what would in effect have been a vacation, or because he intended (as Mr. Doonan reported) to retire, or because he was unhappy with the employer as a result of the LCA, does not matter,” the arbitrator said.
This attempt to use use sick leave is a “form of time theft that goes to the very heart of the employment relationship and the trust that an employer must have in its employees, particularly when it comes to sick leave,” it said.
The employer had just cause to discipline Borden, and termination was “reasonable, appropriate and justified.”
As an aside, the arbitrator pointed out that the conduct here did not actually breach the LCA. That’s because it was focused on respectful conduct, behaviour and speech when dealing with co-workers, management or clients and their families. It was not focused on the obligation to report to work or to use sick leave only for the purpose for which it intended.
For more information, see Unifor Local 4606 v Northwoodcare Incorporated, 2022 CanLII 117403 (NS LA).
