Company accommodated disability by permitting absences when necessary, but didn’t have to accommodate worker’s failure to follow reporting policy
The Ontario Human Rights Tribunal has upheld the dismissal of a worker who suffered from kidney stones because the dismissal was for his failure to follow the procedure for reporting his absences, not the absences themselves.
Nicholas Rajic started working for Omega Tool Corporation, a company that engineers and manufactures plastics tooling based in Oldcastle, Ont., on Nov. 30, 2015. On his first day, he attended an orientation with a human resources assistant where he reviewed the employee handbook including the company’s attendance policy.
The attendance policy stated that Omega expected employees “to be at work every day, on time, as scheduled.” However, if employees were unable to start work at their normal starting time, regardless of the reason, they were required to notify their manager before their shift began and state the reason for their absence. If the reason was personal, they could simply say “personal reason” but had to contact human resources to discuss it.
The policy also stipulated that employees had to call in each day of their absences until “appropriate medical documentation” was provided. Any employee absent for three or more consecutive days was required to provide medical documentation that justified the absence and indicate the employee’s fitness to return to work. An absence of three days without notification was considered a resignation.
Omega ran a streamlined operation, so the attendance policy was in place so the company could allocate its employees efficiently in the event of unplanned absences. Knowing when employees would be absent before their shifts started was important to maintain efficiency and productivity.
At the orientation, Rajic acknowledged that his manager’s number and extension was on the back of his swipe card and he was to contact him if he was going to be late for his shift.
A few days later, on Dec. 3, Rajic awoke with nausea, cold sweats, and vomiting. He felt it was too early to reach anyone at work, so he went to a clinic without calling in. He was sent to a hospital for treatment, where he called Omega’s main reception and left a message saying where he was and that he wouldn’t be in for his shift. He placed the call after the scheduled start of his shift. It was eventually determined his symptoms were caused by kidney stones.
At 8 a.m., one hour after the scheduled start of Rajic’s shift, Omega’s receptionist heard his message. She called Rajic on his cellphone and he responded 15 minutes later, saying he was still in the emergency room waiting for a doctor. The receptionist asked him to bring a doctor’s note to work, particularly if he had any restrictions related to his work. She also reminded him of the policy on reporting absences and to contact his manager for tardiness or absences. Rajic apologized and said it wouldn’t happen again.
Later that week, Rajic’s manager discussed the importance of calling in before the start of his shift with him and confirmed Rajic had his number and extension. He also gave Rajic his cellphone number as a backup.
Two weeks later, on Dec. 17, Rajic again woke up at 5 a.m. with the same symptoms as before. He went straight to the hospital, where he waited for a long time without seeing a doctor. He eventually gave up and went to the urgent care clinic, where he was told to take Tylenol or Advil. The doctor at the clinic gave Rajic a note excusing him from work that day and said if he still had the symptoms the next day he should take it off as well. Rajic didn’t call in to report his absence that day.
Almost one hour after the start of Rajic’s shift, the Omega receptionist called Rajic and reminded him to call his manager if he was late or absent. She told him that not following the policy for reporting absences could lead to termination and Rajic acknowledged that he understood. Omega gave Rajic a written warning for his failure to follow the policy.
Rajic was still feeling the symptoms the next day, so he called and left a message for his manager saying he would be absent and would be back at work the following Monday, Dec. 21. However, it was five minutes past the start of his shift.
Rajic came to work on Dec. 21 and gave the note he had received on Dec. 17 to the receptionist. He was called into a meeting where he was given the written warning letter and the call-in procedure was again described to him. The letter noted that if he failed to follow proper reporting procedure, it would result in “further disciplinary action up to and including termination.”
The next day, Dec. 22, Rajic’s mother woke him up at 6:30 a.m. and asked him to drive her and his brother to the hospital because his brother was ill. He drove them to the hospital and called his manager about 15 minutes after the start of his shift. Management discussed what to do, as Rajic had been given repeated warnings about the policy and his late call-ins were affecting the manager’s ability to plan his team’s work. They decided to terminate Rajic’s employment, but since the next day was the company holiday party and the plant would be closed for one week after that, they decided to delay the termination until Dec. 30 — the next work day at the plant.
On Dec. 30, Rajic was terminated for repeatedly failing to follow the reporting absences policy. Rajic felt management believed he was trying to avoid work but he felt he had been absent for legitimate medical reasons. Rajic filed a human rights complaint alleging he was terminated because of his disability of having kidney stones and Omega didn’t want to accommodate him.
The tribunal accepted that Rajic’s kidney stones were a disability for the purposes of the Ontario Human Rights Code, so the issue was to determine if the condition contributed to his termination by Omega.
The tribunal also accepted that Omega’s reporting absences policy was important in maintaining an efficient operation and clearly emphasized to employees that they were required to call in before the start of a shift. The written warning referred to Rajic’s absences but it stated that the warning was about failing to comply with the policy for reporting absences, said the tribunal.
Omega’s consistent emphasis on the reporting absences policy gave credence to the company’s position that it genuinely considered the policy to be important and the decision to terminate Rajic’s employment was because of his repeated failure to call in on time, not the absences themselves.
The tribunal noted that the reporting absences policy could potentially have an adverse impact on individuals such as Rajic who might be more likely to miss work because of a disability, but Rajic couldn’t provide any reason why he couldn’t have called in before the start of his shifts. The reasons he gave for not calling in on time — no phone service at the hospital, he was driving, or it was too early to reach anyone — were not related to his disability, said the tribunal.
In addition, the tribunal found Rajic had no restrictions in his work unless he was experiencing kidney stones, so the only accommodation required was to permit his absences when the symptoms arose — which Omega did. There was no reason to exempt Rajic from the reporting absences policy, said the tribunal in dismissing Rajic’s complaint.
For more information see:
• Rajic v. Omega Tool Corp., 2017 CarswellOnt 21217 (Ont. Human Rights Trib.).
