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Fired for too many absences? Not so fast

A good reason for absences not a good reason for dismissal

By Jeffrey R. Smith

What is the purpose of an employment relationship? When one boils it down, it’s pretty simple: The employee performs work that contributes to the success of the employer’s business, and the employer compensates the employer for that work. Pretty simple. And if the employer feels it can’t rely on the employee to perform work — or the employee doesn’t at all — the employment relationship can be terminated. Except it’s rarely that simple.

There can be reasons the employee doesn’t fulfill her part of the bargain. Maybe the employee is sick. Maybe she has outside factors that prevent her from coming to work. It’s important for the employer to find out why the employee can’t do the work and under what circumstances she might be able to continue working. Because if the reason is a protected ground under human rights legislation, it’s not a matter of the employee not wanting to work, but not having a way to work. And employers are required to find a way, if possible.

Take a case that recently was before the Ontario Human Rights Tribunal. One day, an employee asked his supervisor for the following day off, as his wife was suffering an anxiety attack and the employee feared she wouldn’t be able to care for their two small children. There was no one else who could care for the children on short notice, so he had no choice but to take the day off to avoid endangering the children.

The employee’s wife didn’t improve and he had to take the second day off. The employee waited until after his shift started to call in because he had to care for his family and he figured the employer already knew why he was absent.

After two days off to care for his wife and children, the employee returned to work.  However, at the very beginning of his shift, he felt pain in his side when he tried to lift boxes. He told his supervisor he couldn’t work because he hurt himself, and the owner told him not to come back as the company couldn’t rely on him to come in to work. A few days later, the employee provided workers’ compensation medical forms that indicated he could perform modified duties, but the employer’s position was the same: he wasn’t reliable and he was terminated.

The employer maintained that the employee was fired because he failed to call in before his shift on the second day of his absence. While the tribunal agreed the employee should have called, it determined this wasn’t serious enough on its own to warrant dismissal. The evidence and the attitude of the owner made it likely that the employee’s absences over three days was a major factor in the dismissal. Since two of the missed days were due to family status obligations and the third was due to a disability — the employee’s claim for workers’ compensation benefits was approved and therefore met the definition of disability in human rights legislation — the dismissal was for discriminatory reasons.

Though the worker had only been employed with the company for one month, he was awarded $10,000 in damages for injury to dignity, feelings and self-respect. He wasn’t awarded compensation for lost wages because he received workers’ compensation benefits following his dismissal: Miraka and A.C.D. Wholesale Meats Ltd., 2016 HRTO 41 (Ont. Human Rights Trib.).

It may be frustrating for an employer when a worker’s absences affect his ability to do his job and therefore negatively affect the employer, but if the employer wants to take action against the employee because of those absences, it had better make sure the absences aren’t caused by protected grounds or characteristics.

Being too quick to act can lead to slow but steady legal trouble. 

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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