By Keri Bennett
Employers everywhere often wonder when an employee’s “innocent” or no-fault absences reach a level that warrants termination. Can these employees ever be fired? Yes, is the answer from one New Brunswick labor arbitrator in Canadian Union of Public Employees, Local 1252 and Vitalité Health Network.
A nurse at a hospital in New Brunswick was excessively absent over a 24-year period. The employer made repeated efforts to address her absenteeism, including ongoing letters and meetings under an attendance management program. The employee’s random yet continual absences caused a negative impact on patients, her coworkers, and the employer. The employer issued a written reprimand and raised the threat of suspension and dismissal from 2005 to 2010.
Among its efforts, the employer reduced the nurse’s schedule on a temporary basis to a level of hours that reflected her actual attendance, which was significantly lower than her coworkers’ hours. The employer also moved her to another department with regular day hours in the hopes that her attendance would improve.
Despite these efforts and the nurse’s ongoing promises of improved attendance, her attendance didn’t improve and she was ultimately fired.
In agreeing that termination was appropriate, the arbitrator relied on the principle that the employer is entitled to expect a reasonable level of attendance from employees. In a case of innocent absenteeism, the arbitrator’s role is to assess the employee’s ability to discharge her employment obligations in the reasonable future. Of importance were the following factors:
- The nurse’s work history showed continual promises to improve attendance followed by a return to excessive absences from work.
- There was no evidence of a medical condition unknown to the employer that would have caused any changes in the nurse’s future work patterns.
- There was no evidence that a suspension from work would have the intended result.
- The nurse’s numerous explanations for her absences only addressed the larger blocks of absences.
In his analysis, the arbitrator distinguished between longer blocks of absences and those that are shorter and periodic. In longer absences, employees can more easily be brought in to cover or even take over a position. Short, last-minute, and periodic absences have the potential for greater disruption on the employer’s business and cause increased difficulty in scheduling work.
Further, the arbitrator acknowledged that the nurse’s sporadic absences were indicative of her attitude toward her job.
Takeaway for employers
While employers must take care to assess each situation on a case-by-case basis, if an employee is consistently unable to fulfill his or her employment obligations and doesn’t show the ability to do so in the reasonable future, Canadian employers may be entitled to terminate the employment relationship.
Keep in mind, however, that although you may instinctively know that an employee won’t be able to work regularly in the future, it may be difficult to prove. A medical opinion will more than likely be required.
Keri Bennett is returning as an associate in the Labour, Employment and Human Rights Group in the fall of 2011. She will be engaged in a broad practice assisting employers with matters relating to restructuring, downsizing, human rights, employment agreements and terminations, labour relations and collective agreement interpretation.