Despite the employer’s numerous attempts to accommodate her following a workplace injury, a nurse’s excessive absenteeism undermined the employment relationship such that her termination was justified.
Employed as a nurse at a regional hospital, S.T. suffered a workplace injury on March 18, 1990 when she reflexively grabbed at a drawer of rolodex cards that had fallen unexpectedly after becoming untracked. S.T. wrenched her arm, shoulder and neck. In 1997 she was awarded a non-economic loss award by the provincial compensation board.
Following three surgical procedures, S.T. attempted to return to work in May 2001 following an 18-month period where she was off work because of the injury.
In view of her physical restrictions and informed by a Functional Capacity Evaluation, it was felt that S.T. could perform the functions of a Medical Records Technician, which allowed her to work at her own pace in a controlled environment. The job, which required only light typing, allowed her to maintain a neutral position and take breaks as needed. Repetitive movements of the neck were not required, and there was no lifting, pushing or pulling.
However, six months later S.T. was reporting discomfort in her neck and referred pain in her arms and hands. Following consultations with the hospital’s ergonomist, her computer workstation was modified. Nevertheless, significant periods of absence followed in 2003. Beginning in 2004, S.T. was off work from November until July 2005 except for a few weeks of modified duty and a single day in February, 2005.
Warned about her attendance
S.T.’s absences drew the attention of the hospital’s attendance management program and, beginning in 2005, she was warned six times that she might lose her job if her attendance did not improve.
S.T. was absent 76 days in 2006 and 38 days in 2007. In 2008 she claimed that she had sustained injury to her shoulder because of her job and she filed a claim for compensation. Her claim was rejected following an investigation by an ergonomist from the compensation board who determined that there was nothing preventing her from doing her job safely and that her job was not the cause of any purported injury.
In June 2008 S.T. was fired for innocent absenteeism.
Between 2003 and 2008 S.T. averaged 63 paid absences per year, the employer said. Looking back to 1999, she was absent 40 per cent of the time. Her absences were not predictable and there was no expectation that her attendance would improve. The hospital had made numerous attempts to accommodate her, modifying her work and providing her with a job within her restrictions as determined both by ergonomists from the hospital and from the compensation board. Neither training nor modifications to her work had any positive effect on her attendance.
The union grieved S.T.’s termination. It acknowledged her attendance problems but said that the employer had failed in its duty to accommodate S.T. The termination was unjust and a violation of her human rights. The employer’s unilateral determination that her modified job was suitable was inappropriate, the union said, arguing that the employer should have considered modifying other jobs as well.
The Arbitrator upheld the termination, ruling that the employer had satisfied the requirements necessary to justify a discharge for innocent absenteeism.
The Medical Records Technician job was within S.T.’s restrictions, the Arbitrator said, and despite their claims of suitability, the other jobs identified both by the union and S.T. were beyond her “considerable restrictions.” “[O]f all the jobs reviewed at the hearing … the [Medical Records Technician] position was the most suitable, and it was more likely than not the only suitable job,” the Arbitrator said.
No expectation of improvement
S.T.’s record of absenteeism was excessive both when compared to the average in her department and in absolute terms and there was no indication or reason to expect that it would improve, the Arbitrator said.
Despite warnings about the seriousness of the problem, S.T.’s attendance did not improve. “Her rate of absenteeism had reached the point of undermining the employment relationship. She had been accommodated in her position yet her absenteeism continued at unacceptable levels. Any further toleration of such absenteeism would have been an undue hardship on the Hospital,” the Arbitrator said.
“In this case, the Hospital has respected the grievor’s fundamental rights in having accommodated her by making necessary alterations to her workplace and duties. Regrettably, the grievor is not able to attend work regularly even though her job is within her restrictions. The Hospital’s duty to accommodate has ended because the grievor is no longer able to fulfill her part of the bargain. That is, she is no longer able to fulfill the basic obligations of her employment for the foreseeable future.”
The grievance was dismissed.
