Traditionally, when an employee’s absenteeism was excessive and there was no reasonable prospect of returning to work in the foreseeable future—as long as there was no contractual term providing otherwise—a Canadian employer could discharge the employee for non-culpable absenteeism or treat the employment contract as having been frustrated. This would bring the employee’s employment to an end. read more…
by Shane Todd
Disability claims management is never easy. It is particularly difficult when employees refuse to provide enough medical information to substantiate their absence and entitlement to benefits, while also refusing to return to work. The decision in Betts v. IBM Canada Ltd., 2015 ONSC 5298, provides guidance to employers dealing with such cases. It confirms that failing to comply with the terms of a disability plan or to return to work may constitute job abandonment. read more…
When confronted with information that an employee may be abusing paid sick leave, it is only natural for an employer to want to investigate further. One way in which employers may do this is through the surreptitious surveillance of the employee. However, such surveillance is of limited value unless the employer will be able to rely on the surveillance in a subsequent legal proceeding. read more…
By Keri Bennett
We all know employees across Canada have an obligation to participate in the accommodation process. That extends to providing proper medical documentation. If an employee fails to provide such documentation, surely he or she could be disciplined. Not necessarily.
Notwithstanding the employee’s obligation to participate in the accommodation process, an Ontario arbitrator has ruled that an employer was not entitled to discipline an employee who failed to consent to the release of personal medical information to support repeat absences over a span of eight years. But there can still be consequences to the employee. read more…
Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.
This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart). read more…
When the employment relationship becomes impossible to perform because of a factor outside the control of a Canadian employer or employee, the employee’s employment can be terminated by virtue of frustration of contract. When an employee won’t be able to return to work because of injury or illness, the same applies. But not so for federally regulated employers such as banks, airlines, inter-provincial trucking companies, etc.
According to the recent decision of Kingsway Transport v. Teamsters, Local Union 91, the frustration argument is no longer available for those employers when the employee’s inability to return to work is because of a work-related injury or illness. read more…
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.
By David Wong
Attendance management programs themselves aren’t discriminatory — they just need to be carefully designed and properly applied. Such is the latest conclusion in continuing litigation between Coast Mountain Bus Company Ltd. and the Canadian Auto Workers, a battle over an attendance management program covering transit operators in the Greater Vancouver region in British Columbia.
When warehouse worker Dan Tomasella was injured in a car accident in 2008, his employer did the right thing: Maersk Distribution accommodated his graduated return to work and provided him with light duties.
Maersk stepped up again when Tomasella’s shoulder injury was further aggravated. But when the economy took a turn for the worse, Maersk laid him off because of his disability. A labor arbitrator has now found that the employer’s human rights “duty to accommodate” substantially changed when its business was sideswiped by the crashing economy.
When an employee is absent because of long-term disability, employers naturally wonder how long they must wait before the employment contract has been “frustrated.” If it has, the employment contract can be terminated. According to the recent Ontario decision of Naccarato v. Costco Wholesale Canada Ltd., however, the question isn’t “how long” but rather “what is the prognosis?”