2 recent cases highlight importance of facts, employee honesty in determining discipline
By Stuart Rudner
Two recent cases addressed the issue of when an employee can be summarily dismissed as a result of her absenteeism. Given the very different factual background in each case, it is not surprising the conclusions reached were also quite different; in one case, summary dismissal was upheld due to the fact the employee was dishonest about his absences; in the other, the dismissal was overturned due to the fact the reason for the absence had been discussed and, in essence, agreed to beforehand.
In Mainroad Group and BCGEU, Local 10 – 01 (Buckley), the grievor was a member of the local volunteer fire department. When he was hired, he informed his foreman of this and it was agreed he would not leave for a fire call if doing so would cost the company money or cause unnecessary disruption. Otherwise, the foreman was supportive of the grievor's role as a volunteer firefighter.
Some issues arose regarding the fact the grievor did not use his time cards regularly to record the time he was away for fire calls, as well as the fact he was apparently paid for his "volunteer" firefighting. The combination of these two facts meant he was effectively "double dipping" as he was paid as if he was at work when he was really responding to a fire call for which he was also paid.
A meeting was held with the grievor, although when he was asked about his absences, he did not offer much in the way of explanation other than saying "I do not recall." Soon thereafter, the grievor was dismissed as the company took the position it could not trust him.
When this matter was heard by the arbitrator, it was found the system for emergency departures was "loosey-goosey" and the employer had been aware of the concerns regarding double-dipping for several years before it made the decision to dismiss. The arbitrator found that the grievor's lack of helpful responses during the investigation meeting were more related to his lack of sufficient information to respond to than to any deliberate attempt to deceive.
Ultimately, the arbitrator concluded:
"While normally the conduct of (the grievor) would be considered very serious, the context of this workplace and the fact the employer knew of the situation in 2009 changes the complexion of the actions at issue from deliberate dishonesty and malfeasance... ultimately, the evidence in my view establishes an employee operating under an understanding he thought to be in place over a significant period of time."
In other words, given the particular circumstances of this case, the arbitrator found that the grievor was not acting dishonestly and was, in fact, operating pursuant to the agreement he thought was in place. As a result, summary dismissal was inappropriate.
Chronic back pain
By way of contrast, in MacBurnie v. Halterm Container Terminal Limited Partnership, the plaintiff suffered from chronic back pain and missed substantial amounts of work. The employer became suspicious when he continued to take more and more days off and often failed to report his absences or respond to calls when he was away.
Surveillance showed that on days when the employee claimed his back was so bad he could not come in, he was often out walking briskly and carrying heavy packages, including alcohol. However, his pace would slow when he arrived at medical appointments. The court agreed there was an element of dishonesty that justified dismissal.
It is apparent from the cases above that each case will be decided based on its own particular facts, and the honesty of the employee in question, or lack thereof, in relation to the reason for her absenteeism will be an important factor.
Employers should closely monitor the attendance of employees and ensure they have clear policies that are being routinely enforced. Where there are concerns, they should be addressed immediately so employees will understand the rules and not be given the opportunity to argue that an informal agreement existed regarding their ability to take time off.
The fundamental bargain between employer and employee is the employee will work and the employer will pay him. There will always be occasions when employees need to take time off work; that is to be expected and employers should be reasonable in tolerating absences. However, where the extent of the absences becomes unreasonable, employers should be able to take action. In many cases, they deprive themselves of the opportunity to do so by failing to consistently enforce policies and discipline offenders.