The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk.
Employers 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 labour arbitrator, in Canadian Union of Public Employees, Local 1252 and Vitalité Health Network (PDF).
Facts
A nurse at a regional 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 grievor's random, yet continual absences, caused a negative impact on patients, her co-workers and the employer. The employer issued a written reprimand, raised the threat of suspension and threats of dismissal from 2005 to 2010.
Among its efforts, the employer reduced the nurse's hours on a temporary basis to a level of hours that reflected her actual attendance, which was significantly lower than her co-workers. The employer also moved her to another department with regular day hours in the hopes that the grievor's attendance would improve.
Despite these efforts and the grievor's ongoing promises of improved attendance, the nurse's attendance didn't improve and she was ultimately fired.
The Decision
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 grievor's ability to discharge her employment obligations in the reasonable future. Of importance were the following factors:
- The grievor'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 grievor's future work patterns.
- There was no evidence that a suspension from work would have the intended result.
- The grievor'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 grievor's sporadic absences were indicative of her attitude towards her job.
Take-Away 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 does not show that they will be able to do so in the reasonable future, employers may be entitled to terminate the employment relationship. Keep in mind, however, that although you may instinctively know that an employee will not be able to work regularly in the future, it may be difficult to prove. A medical opinion will more than likely be required.
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