Commuting delays and time off

Can an employer discipline an employee or force them to take a partial vacation day if abnormal transit or traffic delays make them significantly late?

Commuting delays and time off
Tim Mitchell

Question: Can an employer discipline an employee or force them to take a partial vacation day if abnormal transit or traffic delays make them significantly late?

Answer: There is no question that employee absence and tardiness can be disruptive and even prohibitive to running a business. Employers are entitled to expect their employees to attend for work, during agreed-to hours of work, and complete the work that the employee has been hired to do. When an employee is absent or late, employers are not required to pay the employee for work they did not perform. However, an employer cannot force an employee to take a partial vacation day when an employee is significantly late. This is regardless of whether the employee is late due to transit or traffic delays or other less-justified reasons.

Vacation days are intended to give employees a break from their employment. Many jurisdictions permit vacation days to be taken in half-day increments if agreed to by the employer and employee. In some jurisdictions, the employer can force their employees to take their vacation days, but advance notice must be provided. Given that advance notice must be provided, employers cannot force their employees to take their vacation days when they are significantly late.

That said, employers are not required to pay employees for work that has not been completed. While forced vacation days are not an option, employers can seek other forms of redress. They may choose to deduct this time from the employee’s hours of work or expect the late employee to make up those “missed” hours at a later time.

Despite not being able to force employees to take vacation days, employers may take other disciplinary measures against employees for being significantly late. Employers may undertake progressive discipline. Lateness will not generally fall into the category of serious misconduct warranting immediate dismissal. However, persistent lateness, in combination with progressive discipline, may sustain a termination from employment.

As in all discipline cases, the circumstances of a specific incident must be considered. For example, where an employer enquires into an employee’s lateness and the employee blames abnormal transit or traffic delays, the employer may view this as a legitimate justification not warranting discipline. If the employee continues to show up late and continues to blame transit or traffic, the employer may reasonably view this as a less-legitimate justification that may warrant warnings and further disciplinary action.

Further, when determining appropriate discipline, the employer must consider both the employment contract and relevant policies, as well as ensure that the discipline is appropriate in the circumstances by asking the right questions. Asking questions regarding the circumstances of lateness may uncover alternate reasons related to the employee’s health and family. These may trigger accommodation obligations under human rights legislation. Notably, employees have an obligation to make their employer aware if lateness or absenteeism is a result of illness, medical conditions or childcare or family obligations as an employer cannot accommodate without knowledge of the situation.

Employers should make their expectations clear by attending work on time or providing advance notice of lateness or illness. Tardiness issues should be immediately and consistently addressed with an offending employee; however, the employer’s response to an employee’s lateness must be decided in view of the facts specific to that employee.

Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or tmitchell@mross.com.

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