Innocent absenteeism is absenteeism which results from the
illness or disability of an employee. "Frustration" is
the legal concept which allows employers to terminate employees
when innocent absenteeism becomes excessive and there is no
reasonable prognosis for improvement in the foreseeable future.
However, determining when innocent absenteeism reaches the point of
frustration is far from straight-forward.
Over the past three decades, the concept of frustration has been
complicated by the addition of human rights obligations which
prevent an employer from discriminating against employees based on
disability and require accommodation to the point of undue
As a result of these human rights obligations, employers are
expected to accept legitimate employee disabilities, and modify
duties and expectations with a view to returning employees back to
productive work. Only where excessive absences (which can be
intermittent or an extended period of complete absence) and
uncertain or long prognoses exist may an employer consider the
employment relationship to be extinguished as a result of
frustration of the employment contract.
Applying principles developed by the Supreme Court of Canada,
earlier this year Arbitrator Dorsey issued his award in Teamsters Local, Union No. 213 v Sun-Rype Products
Ltd., addressing an employer's ability to rely on innocent
absenteeism when terminating. Although the principles are not new,
this decision provides a useful guide to employers on how to manage
employee absences, the responsibility to facilitate a return to
productive work, and when it is appropriate to consider an
employment relationship at an end.
Sun-Rype, over the course of a lengthy absence of more than two
years, assisted an employee in seeking rehabilitation, obtaining
benefits, and developing return to work programs. Ultimately, the
employee was unsuccessful in returning to lighter work despite two
gradual return to work plans, and no additional options were
available for accommodation. The employee's prognosis for
returning to productive work was uncertain and the employer
dismissed the employee for innocent absenteeism.
Although the union claimed that Sun-Rype had failed to
accommodate the employee, the arbitrator found that the employer
had fulfilled its responsibilities under human rights legislation
and was entitled to dismiss the employee due to its legitimate, but
ultimately unsuccessful attempts to return the employee to
productive work. The arbitrator confirmed that where an employer is
able to demonstrate that an employee cannot return to productive
work in the foreseeable future, further accommodation would be an
undue hardship and the employer may consider the employment
relationship to be at an end. Importantly, the arbitrator explained
that an employee must meet a basic level of fitness for the
available work (not necessarily the employee's pre-disability
work), and that a failure to obtain, or have a foreseeable ability
to return to, that level of fitness relieves an employer of its
obligations to the employee.
This decision serves as a good reminder of the incorrectness of
the belief held by many that an employee suffering a disability
cannot be terminated. To learn more about managing innocent
absenteeism and terminating employees based on frustration of
contract, we invite you to attend our upcoming webinar "
Dealing with Performance and Absenteeism Issues".
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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