When does an employee have to provide a Doctor's note to
excuse a workplace absence? After the absence, during or before? A
recent labour arbitration case provides some guidance:
According to a provision in the collective
agreement in this
case, an employee could be fired if he or she was absent for
more than three consecutive working days without a reasonable
excuse. The employee in this case was absent for four consecutive
days in June 2015 and was terminated soon thereafter for these
absences. Although the arbitrator found that the employee had a
legitimate medical excuse for his absences, the employee did not
inform his employer of this medical excuse until after those four
consecutive days away from work.
The question for the arbitrator was this: did
this provision in the collective agreement require the employee to
contact the employer about his absence before being away from work
for four consecutive work days? If the answer was yes then the
employer would be justified in terminating the employee. If the
answer was no, then the employer would have to reinstate the
According to the Arbitrator, the answer was a
resounding "no." Since there was no possible
interpretation of the provision in the collective agreement
permitting the termination of employees after four consecutive
unexplained work absences that would specifically require employees
to notify the employer in advance of those absences, the employee
could not be terminated.
While it may seem like a common sense reading
of a contract provision or policy about workplace absences would
require employees to give their employer notice in advance, or at
the time of an absence, without a clear statement regarding the
timeliness of the notification process, employers will be left
without knowing where their employees are and, importantly, without
the opportunity to dismiss them for being absent.
Written with the assistance of
William Goldbloom, articling student.
Norton Rose Fulbright Canada LLP
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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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