In a previous post found
here we considered the basic requirements for an Attendance or
Absenteeism Management Plan. This post looks at two key and
vexing issues in particular.
1. Disabled employees – an AMP must
(a) put their employment in jeopardy solely on the basis of
absences due to disability,
(b) automatically or arbitrarily impose disciplinary
consequences for a failure to meet attendance
expectations that are based on average employee absenteeism,
(c) make them considered for termination as a result of
absences at an earlier time than employees without
2. Medical information – may be
requested when needed to:
(a) verify whether an absence is legitimate,
(b) verify a claim for sick pay or disability benefits,
(c) verify fitness to return to work,
(d) ensure the safety of the employee, other employees, clients
and the environment,
(e) determine what forms of accommodation might be necessary,
(f) determine the anticipated duration of the accommodation.
The employer is always subject to the duty to accommodate a
disability to the point of undue hardship and an AMP must provide
flexibility in order to allow the employer to fulfill that
duty. Medical information should be examined closely and
management should avoid making assumptions about an employee's
ability to work or the need for accommodation. An effective
AMP will identify true attendance problems; for example, by
distinguishing between genuine illness and sick leave abuse.
In appropriate circumstances, an employee may be dismissed for
excessive non-culpable or innocent absenteeism. However, the
fact that an employee has progressed through an AMP does not itself
justify dismissal for non-culpable absenteeism. The decision
to dismiss an employee must be based on the specific circumstances
of the employee and an evaluation of the duty to accommodate.
An employee must always be warned before they are dismissed that
they must improve their attendance or face dismissal. Such a
warning is not considered disciplinary in itself.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Back in July 2012, we covered "PVYW v Comcare" (No 2),  FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.
A discussion on the judicial decision in a recent case, where a BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.