Employment relationship frustrated beyond repair: Arbitrator
Too much sick time led to April Murphy’s termination.
Ontario’s Sault Area Hospital dismissed Murphy on May 2, 2012, for frustration of the employment contract. The termination letter included a summary of her yearly absences dating back to April 2004. In the eight years leading to her termination, Murphy logged more than 1,315 sick hours — that's about 165 eight-hour shifts.
A nurse for 23 years, Murphy was hired by the employer in 1990. In 2002 she became a full-time nurse in the hospital’s Pediatrics Department and worked in the Neonatal Intensive Care Unit (NICU).
The union argued that because the NICU treats babies born prematurely — as early as 28 weeks — her patients were exceptionally vulnerable to infectious disease.
When she felt unwell, Murphy testified, she would call in and leave a message with both her nursing manager and the occupational health nurse. The occupational health nurse would often call Murphy back to ask for signs and symptoms in an effort to track whether or not any contagions were spreading in the department.
Typically Murphy would be instructed to rest, take fluids and return to work only when she had been symptom-free for 48 hours.
The Ontario Nurses’ Association filed a grievance on Murphy’s behalf, seeking reinstatement with compensation. The union argued Murphy was fired because her conscientious conduct led to a high absenteeism rate.
Murphy’s absences due to illness lead her to be placed on the employer’s Attendance Management Program (AMP). At the time of her termination, Murphy had been at the program’s sixth and final stage for more than four years.
While she was often sick — and had been participating in AMP since the first year of her employment in a full-time capacity — Murphy testified she never considered applying to another area of the hospital as she loved her work within the NICU.
She testified she understood reaching stage six in the program could lead to termination for non-culpable absenteeism.
The employer argued Murphy is incapable of regular attendance in the future. Serious patient needs require far better attendance than the hospital has received from Murphy in the past, the employer said. Her absences surpass both departmental and hospital averages.
The union, however, argued the employer failed to prove Murphy’s record of absenteeism is so extreme as to have irreparably breached the employment relationship. The legitimacy of her absences has never been challenged, the union said.
Despite her best efforts, Murphy picked up illnesses in the workplace. Her absenteeism record is above the hospital average, the union argued, only because she faithfully followed policies.
The union further argued the hospital’s AMP is "too blunt an instrument." The program does not take into account whether employees are full-time or part-time and makes no distinction between departments where infectious diseases are more prevalent.
Murphy’s absenteeism record is being compared to employees that have no contact with patients, such as office staff.
Arbitrator James Hayes, however, found no issue with the statistics produced by AMP or their contribution to her termination.
"It is also impossible for me to conclude that the hospital has rushed to judgment in this case," Hayes said. "The grievor has been in the AMP for several years… The hospital has also reviewed the grievor’s attendance record over a very long time span."
Hayes found the evidence provided by the union provided no basis to suggest there is any prospect for improvement in her attendance. The grievance was dismissed.
