The grievant, a fifteen year employee of MTA was a Bus Transit Operator.  He was removed from work because his physician found him “medically unable to work until further notice.”  The employer requested and received further explanation which included diagnosis and an initial anticipated return to work date.

The grievant did not sufficiently improve and his leave was extended multiple times.  Each time, the grievant faxed new medical documentation.  The last faxed extension was not received by the employer.  He was terminated under the voluntary quit language of the contract.

The employer argued that the parties negotiated a specific three day absence will result in automatic discharge and that the arbitrator did not have authority to change or vary that.

The Union argued that the employer failed to prove that the grievant was a no call/no show or that he failed to provide proper and valid notice of his absence as required by the contract.

The Union’s testimony established that the employer was clearly on notice of the grievant’s extended leave of absence and that he would not be returning to work on the days initially indicated.

The arbitrator opined:

The arbitrator is a creature of the contract between the parties and has only that authority and jurisdiction granted him.  Where the contract is clear and unambiguous it is his obligation to apply and enforce its terms.

These so called “voluntary quit” clauses have been found in collective bargaining agreements for many hears.  Their initial and primary purpose really was to help clean employment rolls of employees who simply stop coming to work.  It is based upon the presumption that the employee has quit.  The parties who agree to such clauses establish an automatic “penalty” or result – termination of employment.  Where all of the factors presented meet the requirements of the clause the arbitrator really has no choice but to enforce it.  Such cases do not involve any issue of just cause and all the employer has to prove is the basic facts required by the contract provision.

The arbitrator concluded that such was not the case here.  Instead, there was confusion and miscommunication.  “There was no contention that the grievant was not medically disabled from performing work.  Rather the employer’s defense is that it was never informed of his status and therefore was entitled to implement the automatic termination.”

Both the grievant and his doctor verified that the doctor’s statement had been sent by fax from the doctor’s office to the employer.  The arbitrator concluded that the testimony was credible and therefore the fax was either misprocessed or misplaced.  Either way, “it constituted notice to the employer of the grievant’s status and so fulfilled all of the requirements of any medical certification.”