'The worker engaged in culpable behaviour by failing to provide even the minimum information necessary'
“In attendance management, documentation matters, and when you get to repeated and substantial absences, the obligation shifts to the employee to substantiate their absences.”
So says Michael Horvat, a labour and employment lawyer at Aird & Berlis in Toronto, after an Ontario arbitrator reinstated a worker who was fired for breaching the employer’s attendance policy, but without back pay for the six months she was unemployed.
“The worker had a record, there was prior discipline, the employer had engaged in proper activity, and the absenteeism was ongoing and excessive — reinstatement without back pay is a pretty significant penalty, but you typically see a last chance imposed in these circumstances where there's the potential for substantiated health reasons for the absences,” says Horvat.
The worker was employed with Cambridge Brass, a company in Cambridge, Ont., that manufactures and ships brass couplings. She was hired to work in the company’s production facility in 2017.
Over the course of the worker’s employment, she had attendance problems. In 2021, she had 27 unexcused absences and five excused absences for various reasons including her son’s health issues – she was a single mother and her son was diagnosed with diabetes around the same time she started at Cambridge Brass — as well as her own physical and mental health issues.
In 2022, she missed 36 days of work, also for health issues involving herself and her son – including both of them getting COVID-19 - along with family emergencies.
Attendance management policy
Cambridge Brass issued several non-disciplinary and disciplinary memos about her absenteeism under its attendance management policy. The company issued a three-day suspension in December 2020 that put her near termination, but her attendance improved to the point where her discipline was rolled back one step after one year under the policy.
In 2021, management met with the worker on a monthly basis from August to December to discuss her absenteeism issues. They asked if there was anything the company could do to help her and said she could discuss her issues with management, who kept the lines of communication open.
In August 2022, Cambridge Brass gave the worker a final written warning saying that her continued absences wouldn’t be tolerated and her employment was in jeopardy. It also stated that simply advising that she was off work for a particular reason wasn’t sufficient and documentation was required under the policy. However, the company continued to work with the worker as she dealt with her personal issues.
In 2023, the worker blamed some of her absences on difficulty sleeping, so the company offered to move her from a night shift to a day shift. However, the worker’s absenteeism continued. She received a second three-day suspension in May, which once again put her near termination.
The worker was absent from work on May 22, 2024, as she felt sick. She texted her mother that she was “in bed most of the day” with an upset stomach and diarrhea. On June 7, she left work early with a “really bad headache.” On July 16, she stayed home from work due to pain in her legs and numbness and tingling in her hands. She didn’t provide a medical note for any of these absences.
The three undocumented absences within a three-month period triggered a review under the absenteeism policy. However, Cambridge Brass employees went on strike, so the review didn’t happen until the strike ended on Oct. 2.
Termination of employment
The director of operations reviewed the worker’s attendance records and determined that discharge was mandated under the policy, as she hadn’t gone a year without an incident since her last suspension. On Oct. 10, he terminated her employment for the undocumented absences.
The union grieved the termination, arguing that the company didn’t have cause. It said that the worker was legitimately sick during the three absences that triggered her termination, so they weren’t culpable absences under the policy. The company was obligated to follow the counselling process rather than the disciplinary process for non-culpable absences, the union said, providing the worker’s texts to her mother on the days of the absences as evidence.
The worker added that her son was older now and better able to manage his own health, which would reduce her own mental health issues, so she would be able to attend work more regularly if reinstated.
Cambridge Brass maintained that the worker breached the policy by not supporting her absences with documentation and she knew her job was in jeopardy. It also suggested that the worker was “gaming” the system by reaching the point of termination twice but going a year without an incident the first time so her discipline was rolled back a step. The second time was from a miscalculation on her part, as she hadn’t quite gone a year from her May 2023 suspension, the company said.
The arbitrator found that, based on the evidence of her text messages and consistent testimony, the worker’s three absences in a three-month period in 2024 were due to illness and therefore non-culpable in nature. However, the worker also failed to meet her responsibility to clearly communicate the reasons for her absences to the company, the arbitrator said.
Discipline over absences
The arbitrator also found that the worker was aware of her obligations under the absenteeism policy after extensive communication, warnings, and suspensions over the years. She was “on notice that her absenteeism was not acceptable and that she would have to provide medical documents or at least more information to support further absenteeism” but instead she just advised the company that she was sick, which wasn’t acceptable under the circumstances, said the arbitrator.
The arbitrator determined that Cambridge Brass had a right to impose some form of discipline for the worker’s policy breach, but termination was too severe under the circumstances - considering the company’s previously supportive approach and the significant personal and family health challenges faced by the worker.
Noting that “this is a case where both parties are, to some degree, correct” - the illnesses were out of the worker’s control but she had a duty to be more communicative with the company – the arbitrator upheld the grievance in part. Cambridge Brass was ordered to reinstate the worker with no loss of seniority, but without compensation for lost wages since her termination – essentially serving as a six-month unpaid suspension.
'Culpable behaviour' by employee
The patience that Cambridge Brass displayed in handling the worker’s absenteeism helped it at least justify discipline, according to Horvat.
“The employer probably went above and beyond what may have minimally been required with respect to the warnings, time, and the lack of documentation,” he says. “As frustrating as it may have been to provide the worker with repeated opportunities to fulfill her requirements to provide the necessary information, it left the arbitrator with little choice but to find that the worker engaged in culpable behaviour by failing to provide even the minimum information necessary to support her absences.”
The remedy reached by the arbitrator shows that there wasn’t really any fault in the company’s approach to the worker’s absenteeism, says Horvat.
“It's an indication that the arbitrator felt that the employer took the appropriate steps and therefore shouldn’t be penalized with back pay for the worker, and neither should the worker be rewarded for breaching the policy,” he says.
See USW, Local 4045 and Cambridge Brass Inc. (Bento) (April 4, 2025), Michael McCreary – arb.
