A nurse at a regional hospital in New Brunswick was excessively
absent over a 24 year period. The employer made repeated efforts to
address her absenteeism, including ongoing letters and meetings
under an attendance management program. The grievor's random,
yet continual absences, caused a negative impact on patients, her
co-workers and the employer. The employer issued a written
reprimand, raised the threat of suspension and threats of dismissal
from 2005 to 2010.
Among its efforts, the employer reduced the nurse's hours on
a temporary basis to a level of hours that reflected her actual
attendance, which was significantly lower than her co-workers. The
employer also moved her to another department with regular day
hours in the hopes that the grievor's attendance would
Despite these efforts and the grievor's ongoing promises of
improved attendance, the nurse's attendance didn't improve
and she was ultimately fired.
In agreeing that termination was appropriate, the arbitrator
relied on the principle that the employer is entitled to expect a
reasonable level of attendance from employees. In a case of
innocent absenteeism, the arbitrator's role is to assess the
grievor's ability to discharge her employment obligations in
the reasonable future. Of importance were the following
The grievor's work history showed continual promises to
improve attendance, followed by a return to excessive absences from
There was no evidence of a medical condition unknown to the
employer that would have caused any changes in the grievor's
future work patterns.
There was no evidence that a suspension from work would have
the intended result.
The grievor's numerous explanations for her absences only
addressed the larger blocks of absences.
In his analysis, the arbitrator distinguished between longer
blocks of absences and those that are shorter and periodic. In
longer absences, employees can more easily be brought in to cover
or even take over a position. Short, last minute and periodic
absences have the potential for greater disruption on the
employer's business and cause increased difficulty in
scheduling work. Further, the arbitrator acknowledged that the
grievor's sporadic absences were indicative of her attitude
towards her job.
Take-Away For Employers
While employers must take care to assess each situation on a
case-by-case basis, if an employee is consistently unable to
fulfill his or her employment obligations and does not show that
they will be able to do so in the reasonable future, employers may
be entitled to terminate the employment relationship. Keep in
mind, however, that although you may instinctively know that an
employee will not be able to work regularly in the future, it may
be difficult to prove. A medical opinion will more than
likely be required.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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