An arbitrator has reinstated a deckhand employed by Catherwood Towing Ltd. — a tugboat company in British Columbia — ruling that the company improperly terminated him under a deemed quit/abandonment provision while he was on medical leave.
The employee, J.L., had been with the company since 2016 and was off work due to a non-work-related injury from March 2024 until his termination on June 27, 2024. The Cement, Lime & Gypsum Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D400 (the union) grieved the termination, arguing that the employer did not act reasonably and that the termination was unjust.
The collective agreement between Catherwood Towing and the union includes a clause under Article 4(g)(ii) stating that “Seniority shall be lost, and an employee terminated in the event of: … Absent without leave for three (3) consecutive days without Employer approval.”
The employer argued that its decision to terminate J.L. was based on a correct interpretation of this provision, asserting that it was an administrative dismissal rather than a disciplinary action requiring just cause.
However, Arbitrator Jitesh M. Mistry found that the employer did not act reasonably in invoking the deemed quit/abandonment clause, especially given the circumstances surrounding J.L.’s absence and the employer’s knowledge of his medical leave status.
“The Employer did not act reasonably in the days leading up to and including June 27, 2024,” the arbitrator wrote. “This is not an issue of the Employer not doing enough, but rather its failure to do anything at all.”
Communication breakdown
The arbitrator noted that J.L. had been regularly providing medical notes to T.M., the employer’s Health, Safety, Environment & Quality Manager, via text message from March to June 17, 2024. The last note did not state he was cleared to return to work after June 17.
In mid-June, J.L. broke his phone and lost mobile service due to his inability to pay. On June 15, T.M. requested, via text message, an update on J.L.’s return-to-work status. Unaware of the message due to his broken phone, J.L. did not respond.
On June 13, J.L. saw his doctor, who extended his medical leave until July 9, 2024, issuing a note to that effect. This note was received by the employer’s insurance provider, Desjardins, on the same date.
On June 24, J.L. did not report to work nor contact the employer, as his scheduled shift was to begin that day. On June 26, J.L.’s girlfriend, B.J., called B.H., a dispatcher and excluded manager, informing him that J.L. had an updated medical note and was at a physiotherapy appointment. She requested the phone number of the person who had previously been in contact with J.L. regarding his leave of absence.
Due to a misunderstanding, B.J. was given the wrong number or misrecorded it, resulting in the medical note being texted to B.H.’s landline rather than T.M.’s cell phone. Consequently, the medical note was not received by the employer.
At no point did the employer attempt to contact B.J. to confirm that she had sent the note, nor did they reach out to J.L., the union, or Desjardins.
Termination without reasonable inquiry
The next morning, on June 27, the employer convened a management meeting to discuss J.L.’s absence. B.H. informed the attendees that he had heard from B.J. the previous day and that J.L. intended to send an updated doctor’s note. Despite this knowledge, the employer decided to terminate J.L.’s employment, sending a termination letter at 7:28 a.m. that same day.
“The Employer simply proceeded to termination,” the arbitrator noted. “There was a complete absence of any inquiries about a relatively long-service employee.”
The arbitrator found that the employer ignored key facts and did not act reasonably, particularly given that less than 24 hours had passed since B.J.’s call and that J.L. had been on medical leave with no indication that he was fit to return to work.
“The Employer was not entitled to presume abandonment, particularly after the passage of less than 24 hours since [B.J.]’s phone call and without any subsequent inquiries at all,” the arbitrator wrote.
Obligation to act reasonably
Citing previous arbitration decisions, the arbitrator emphasized that employers must act reasonably when invoking deemed quit/abandonment provisions. In particular, the arbitrator referred to BC Rail v. CUTE, Local 6, where it was established that “there is an obligation on the employer to act reasonably,” and that employers should consider any reasonable explanations provided by employees for their absence.
The arbitrator also referenced Alcan Smelters and Chemicals Ltd. v. CAW, Local 2301, noting that the key questions in a deemed quit dismissal are “whether the employee in question met the criteria defined by the parties in the sense of being absent without authorization, and, if so, whether she or he gave an explanation for the absence which was reasonable in the sense of refuting a finding that it was intentional and within the employee’s control.”
In J.L.’s case, the arbitrator found that the misdirected text message was a circumstance beyond his control and could not be inferred as an intentional abandonment of his position.
As a result of the findings, the arbitrator allowed the grievance and ordered that J.L. be reinstated to his employment with seniority intact. The parties agreed that any remedy should be addressed separately and adjudicated if necessary, with the arbitrator retaining jurisdiction over the grievance.
For more information, see Catherwood Towing Ltd. v Cement, Lime & Gypsum Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D400, 2024 CanLII 106822 (BC LA).
