You can, but get your facts straight
An Ontario Arbitrator has recently confirmed that employers can terminate for excessive but innocent absenteeism. Most often, it is difficult for employers to terminate employees who experience “innocent” or non culpable absenteeism. The Human Rights Code, and more recently, accessibility legislation (AODA), have only increased thresholds for termination in these circumstances.
Non–culpable absences are those experienced due to illness or injury which are not the fault of the employee per se. Whereas culpable absences are at-fault incidents (for example, sleeping-in or deliberately missing work when there is nothing physically or mentally wrong with the employee) – these types of absences can be made subject to corrective action, like any other form of misconduct.
The case at hand involved a nurse working at a hospital who suffered from various illnesses, which consistently presented 3-4 times every year causing her to miss work. The Hospital repeatedly offered her part-time
work and transfers in an effort to accommodate her, but the nurse declined these options. Though this was clearly non-culpable absenteeism, the Hospital terminated her.
Corrective action for non–culpable absences can be justified if an employer can demonstrate that the absence “frustrated” the employee’s contract and made it impossible to do the job they were hired to do. However, proving frustration of contract is usually quite difficult.
The hospital, however, was successful in establishing that the employment relationship was fundamentally and irreparably breached by meeting the following test laid out by the Arbitrator in the case:
1. Demonstrating a consistently excessive pattern of absenteeism, (in this case, the employee had been in the hospital’s attendance management program every year, for several years, and had shown no signs of improvement); and 2. Demonstrating that the employee is incapable of regular attendance in the future (the employee’s own doctor indicated that the hospital
could not expect an improvement to her condition or her attendance).
The hospital was successful in meeting both aspects of the test, and therefore the grievance was dismissed. Though this was a case involving a unionized workplace, the reasoning appears to apply equally in a non-union
work environment and provides useful guidance to better manage situations where an employee is experiencing high levels of innocent absenteeism over an extended period of time.
