Employee claimed employer put pressure on her because of absences due to illness that caused her stress and more absences
This instalment of You Make the Call features a hospital employee who was fired for chronic absenteeism.
The employee was a laboratory technician for the University Health Network (UHN), a group of hospitals in Toronto. The collective agreement included a provision that allowed for termination for abusing leaves granted for a specific purpose.
The employee began working for the UHN in 1990. Starting in 1998, she was absent from work more often than most employees. That year, she missed 84 hours of work and from 1999 to 2006, she collected between 126 and 678 hours of absences, the latter accounting for nearly 60 per cent of her total scheduled work hours.
The employee’s absences put extra strain on other employees and the UHN’s ability to provide its services. It placed her in an attendance management program, which set out an attendance standard. Failure to meet the standard would advance her through seven levels of the program, ending in termination. Success over a six-month period would drop her to a lower level or out of the program.
The employee claimed her absences were caused by medical issues that included hypertension, migraines and a cyst on her knee. The UHN accommodated her knee problem by assigning her work without kneeling or crouching However, the employee continued to have extended absences. On a couple of occasions, the absences were during the same time for which she had requested vacation time and been refused.
The employee sometimes took time off because of stress she said she was experiencing because UHN was frequently bringing up her attendance issues. The employee filed multiple grievances claiming harassment and discrimination, all of which were settled.
When the employee returned to work in August 2006 after a medical leave, the UHN’s occupational health unit deemed her fit to work her full shift. The employee disagreed, saying she had some restrictions because of her knee and a shoulder problem. The UHN adjusted her duties to avoid lifting above her shoulder or crouching.
In October 2006, the employee asked to leave work early twice a week to attend physiotherapy. She was granted unpaid leave for her scheduled appointments. However, the physiotherapy lasted for a long time and the UHN grew suspicious. It decided to implement surveillance of the employee, which revealed she only attended seven of 16 sessions for which she took time off. The other times she ran personal errands.
The UHN decided to fire the employee on Jan. 11, 2007, for using a leave of absence for a purpose other than for which it was granted and excessive absenteeism. The employee filed a grievance, claiming since the leave was unpaid, termination was too harsh and the attendance management program subjected her to discriminatory treatment.
You Make the Call
Were the employee’s abuse of unpaid leave and absenteeism just cause for dismissal?
OR
Was termination too harsh?
If you said there was just cause for dismissal, you’re right. The arbitrator agreed the attendance management program subjected the employee to differential treatment, but this was because her attendance was much worse than other employees. The employee’s history gave the UHN a valid reason for imposing tough requirements on her, particularly because of the problems it caused the UHN’s staffing levels, said the arbitrator.
The arbitrator found the collective agreement clearly outlined the consequence of an employee abusing a leave of absence — termination. Once the UHN discovered the employee was missing her physiotherapy appointments for which she had asked to leave work early, it was free to follow this penalty.
“The parties have agreed to a specific penalty in this clause, namely termination,” said the arbitrator. “Termination is the penalty and I have no jurisdiction to alter or modify that result.”
