Worker missed work because of illness but employer said it was the last straw
This instalment of You Make the Call involves an employee with attendance problems who was fired after being warned.
Brendan Beggs worked as a shipper in the warehouse of Vytec Corporation, a vinyl siding manufacturer bases in London, Ont. He was on the night shift, which ran from 11:30 p.m. to 7:30 a.m. and was the last position to leave the warehouse at the end of the shift.
Company policy stated that if there was no work left for the shipper before the end of the shift, he could go home early if he notified the supervisor. The same practice applied if an employee needed to go home sick.
In 2004, Beggs, who had been with Vytec since 1987, began having attendance problems. Eventually, Vytec’s employee assistance program became involved and its representative asked him if he was missing work because of a dependency. Beggs denied he had a problem or needed any accommodation. He received 24-hour and 40-hour suspensions for poor attendance before Vytec terminated him on July 12, 2004.
After Beggs grieved his termination, vowed he would improve his attendance record and said he had no handicap that would prevent him from going to work, an arbitrator reinstated him with the conditions he would fully comply with Vytec’s attendance expectations and would provide requested documentation to support any absences for a period of three years. If he failed to live up these conditions, he could be terminated.
Beggs’ attendance improved over the next two years, but on July 7, 2006, Beggs left work early without informing his supervisor and missed an overtime shift the next day that he had agreed to work. Vytec suspended him for 80 hours. It told Begg it could have fired him but only gave him a suspension because his attendance had improved since the reinstatement.
On Nov. 2, 2006, Beggs’ girlfriend called Vytec 10 minutes before his shift and asked if he could take the night off. His supervisor said he was already short-staffed and he needed a reason if Beggs wasn’t coming in. However, no reason was given and Beggs never called back to give one.
Beggs worked his next scheduled shift but left early without informing the supervisor. The manager met with him and Beggs said he was still upset about the suspension, which Beggs considered discrimination. He was then terminated for the attendance violations.
A few days after the termination, Vytec received a doctor’s note saying Beggs had missed work on Nov. 2 because of illness and was going to see a specialist.
You Make the Call
Was Vytec entitled to fire Beggs for his attendance problems?
OR
Should Vytec have investigated whether Beggs needed accommodation before firing him?
If you said Vytec was entitled to fire Beggs for his attendance issues, you’re right. The arbitrator said the 2004 reinstatement was a “last chance opportunity” for Beggs to keep his job under specific conditions. He didn’t live up to those conditions.
The arbitrator pointed to other cases that determined the “duty to accommodate cannot pre-empt an employer’s right to discipline and discharge,” nor does it absolve employees from “major employment offences merely because of their illness.” He found the fact whether Beggs had an addiction or not didn’t factor into the dismissal because he had denied having a problem and it was too late to admit to one long after dismissal. He knew he was on a last chance opportunity but still failed to follow Vytec’s attendance policy or the conditions of his reinstatement.
If Beggs did have a disability, the arbitrator said Vytec accommodated him to the point of undue hardship by offering him assistance and giving him multiple chances before terminating him.
