Medical notes should take precedence over surveillance of injured employee's outside activities: Arbitrator
An Ontario employer did not have just cause to dismiss an employee for excessive absenteeism, an arbitrator has ruled.
The employee worked in the dietary department of the Humber River Hospital in Toronto for 15 years — almost seven of those years as a full-time employee.
The hospital kept track of employee sick days in two ways — by monitoring the number of new sick incidents and the number of total sick days employees took. Sick incidents were absences due to illness that could take one or more days but were related to the same illness.
In late 2012, the hospital expressed concern with the number of sick days the employee was taking. According to hospital records, from 2009 through the first half of 2012, the employee had 65 new sick incidents, or 1.5 per month on average. The departmental average during this time was 0.4 per month and the overall hospital average was 0.25 per month. In the same time period, the employee took a total of 127 sick days, averaging 3 per month. The departmental and hospital averages were 1.4 and 0.9, respectively.
In addition, the pattern of the employee’s absences usually involved unanticipated short-term absences, which disrupted the hospital’s ability to schedule employees and issue assignments.
The employee blamed most of her absences on chronic back pain and medical appointments for treatment. The hospital didn’t require doctor’s notes for absences of less than three days, but the employee’s occupational health file indicated she had back problems due to degenerative disc disease. She also suffered from occasional knee and abdominal pain from osteoarthritis and abdominal hernias, respectively.
In 2009 and 2011, the employee was on modified duties related to her back and knee pain. However, the employee didn’t follow her physician’s advice or continue with physiotherapy, so she didn’t improve. She eventually underwent successful surgery for her hernias and the abdominal pain was not expected to recur.
Concerned with the employee’s sick day record that involved more than double the number of sick days and more than three times as many sick incidents, the hospital referred the employee to its attendance awareness counseling program (AACP) in December 2008, but she didn’t attend. She was referred again in March 2010 and attended the sessions.
The employee’s attendance improved somewhat and she was discharged from the AACP in March 2011. However, by November 2012, her absences were still frequent, so the hospital asked the employee to aim for perfect attendance for six months. If she couldn’t accomplish that, her employment could be terminated.
The employee couldn’t make this target and called in sick on Jan. 14, 2013, due to abdominal pain. Five weeks later, the hospital gave her “one final opportunity to improve your attendance,” setting a target of two sick incidents and six days of absence over the next six months followed by the same limits for the 12 months after that — with all absences requiring a doctor’s note. However, over that period the employee called in sick three times for four days — twice with abdominal pain and once with back pain. Though the total sick day limit wasn’t breached, the number of sick incidents was. On Aug. 21, 2013, the employee was dismissed for excessive absenteeism.
The union grieved the dismissal, arguing the hospital didn’t accommodate the employee’s disability and the absences related to her abdominal pain shouldn’t be counted towards the prospects of future absences because it wasn’t expected to occur following surgery.
The arbitrator found that the employer might have met the first “challenge given to her, except for her abdominal hernias. The surgery she underwent was expected to resolve that problem. In addition, she provided doctor’s notes that indicated she was going to have surgery, so the hospital could have asked for a prognosis before deciding whether the employee was capable of coming to work regularly once the surgery was performed, said the arbitrator.
“The employer’s determination, that the (employee) was incapable of regular attendance in the future, was premature and based on insufficient inquiry,” said the arbitrator.
The arbitrator also found the employee had a treatment plan for her back and knee problems, that could potentially improve her attendance. However, if she continued to choose not to follow the plan, she could be putting her continued employment at risk.
