Canada: Termination For Failure To Comply With Attendance Policy Not Discriminatory

In Rajuc v. Omega Tool Corp., 2017 HRTO 818, the Ontario Human Rights Tribunal provided employers with valuable guidance regarding how to deal with workplace attendance problems.

Background

The complainant was employed by the respondent from November 30 to December 30, 2015. During that month, he missed four days of work. After the fourth missed day of work, his employment was terminated.

The complainant argued that the termination was discriminatory on the basis that three of his absences were related to an alleged physical disability (kidney stones). According to the complainant, the respondent dismissed him because it considered his disability-related absenteeism to be a future liability.

The respondent denied that the termination was discriminatory or that it was even connected to the complainant's absences. Rather, the termination was due to the complainant's failure to comply with the call-in requirements detailed in the respondent's attendance policy:

The respondent highlighted that each time the complainant missed work, he also failed to notify his manager as required by the policy and that the policy, and the call-in requirements in particular, were brought to the complainant's attention on several occasions, including in the form of a written warning the day before the incident which led to his dismissal.

Tribunal's Decision

The Tribunal dismissed the complaint, finding that the complainant was unable to establish a prima facie case of discrimination on the test recently confirmed by the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp.

While the Tribunal accepted that kidney stones could constitute a disability for the purposes of the complaint, and also accepted that the complainant had experienced adverse treatment on account of his dismissal, it was unable to find that the disability was a "factor" in the adverse treatment.

In arriving at this conclusion, the Tribunal accepted that the complainant's absences per se were not the reason for his dismissal; rather, the sole reason for the termination of his employment was his ongoing failure to call in as required by the policy. The Tribunal highlighted the absence of any evidence to the effect that the complainant's disability impeded his ability to comply with the call-in requirements. As stated by the Tribunal, "Even if I accept that the [complainant] had good reasons for not calling in ... the [complainant] has not established that his failure to call in was due to his disability."

Accordingly, the complaint was dismissed.

Takeaways for Employers

This case reiterates the principle that finding a disability to be a "factor" in adverse treatment must be based on the evidence and cannot be assumed. It also provides guidance on how to deal with absenteeism issues in a manner which limits exposure to liability under human rights legislation.

Specifically, the case demonstrates that by focusing on things like call-in requirements as opposed to a specific number of absences, employers may be able to avoid a finding that the employee's dismissal was discriminatory. In this case, the absence policy focused on the need to report absences and explicitly stated that there were no rules limiting employees to a certain number of absences or restricting the acceptable reasons for absences. Had the policy not been written in such a manner, or had the respondent focused on the number of absences or the reasons for the absences rather than the complainant's failure to report, the Tribunal would likely have arrived at a different conclusion.

This is not to say that by simply focusing on the reporting or non-reporting of absences as the reason for termination, employers will never be found to have contravened human rights legislation. Had the complainant been able to establish that his disability did impede his ability to call in as required by the policy, the Tribunal would again likely have arrived at a different conclusion.

Although this decision is a valuable tool for employers seeking to avoid human rights liability, before dismissing employees for failure to comply with call-in requirements, employers should still give consideration to: (1) whether there is or may be a disability; and (2) whether that disability could reasonably impede an employee's ability to properly call in.

Finally, it must be remembered that this case was concerned with whether the termination was discriminatory and not whether a failure to comply with call-in requirements amounts to just cause for dismissal, a matter outside the jurisdiction of human rights tribunals. To justify termination for cause in circumstances similar to those in this case, employers, especially in unionized environments, will have to consider, among other things, whether sufficient warnings have been provided and whether the policy itself is reasonable and has been consistently communicated and applied and enforced.

Originally publikshed in the LexisNexis Labour Notes Newsletter.

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