Employee’s absences don’t sit well with employer

Employee missed a lot of work due to arthritis and hemmorhoids but was disciplined several times for failing to call in his absences

This instalment of You Make the Call features an employee who was fired for excessive absences and not calling when he was off sick.

Ian Innes, 34, worked as a labourer for 10 years at Re-Con Building Products in Abbotsford, B.C. Re-Con has a policy, which requires employees to phone their supervisor one hour ahead of their shift if they’re going to be absent. This allows the supervisor to call in a replacement worker without whom employees would have to be rearranged and the plant wouldn’t operate smoothly.

In 1994, Innes missed two months of work and received workers’ compensation benefits after he hurt his back in a workplace accident. In 2003, he experienced back problems and was off work for three months.

In 2003, Innes learned he had spinal arthritis, a condition where the vertebrae fuse and eventually disable the individual. He subsequently missed three days of work in October 2003 and provided a doctor’s note. Around the same time, he experienced bleeding, from hemmorhoids, which sometimes forced him to leave work early. He missed four days of work in early December 2003 because of this problem.

Innes had been previously disciplined for failing to call in absences to work. On Nov. 27, 2002, Re-Con gave him a written warning for not calling in an absence the previous day. On March 18, 2003, Innes was given another written warning which also advised his attendance was considered poor and if he was absent again without calling in, he would be suspended. On June 10, 2003, Innes was late for work. He did call a foreman but was late in making the call. He was suspended for three days and warned if it continued he could be dismissed.

Innes was expected at work on Jan. 27, 2004, after a month-long plant shutdown. Before that shift, Innes called his supervisor at home to say he wouldn’t be in. The supervisor wrote up his termination letter that night but Innes was off work until Feb. 10, except for delivering the doctor’s note on Feb. 5.

The supervisor told Innes he was being terminated for calling in sick too often and failing to provide notice as stipulated by company policy. Innes filed a complaint of discrimination based on his medical conditions, which were the cause of his absences.
You Make the Call
Should Innes have been terminated for excessive absenteeism and not calling in?
OR
Did Re-Con discriminate against Innes by terminating him?



If you said Re-Con discriminated against Innes, you’re right. The tribunal found Innes’ spinal arthritis and bleeding were exacerbated by his job. Because they interfered with his work as a labourer, his medical problems were a disability under the British Columbia Human Rights Code. Innes’ conditions required him to take time off. By firing him for excessive absenteeism, Re-Con discriminated against him because of his disability. The tribunal found Re-Con had an obligation to accommodate Innes to the point of undue hardship. The doctor’s notes he provided, his absences and his time on worker’s compensation should have made Re-Con aware of his condition and the need for accommodation.

Though having employees at work was important to ensure the plant ran smoothly, the tribunal found the availability of replacement employees meant Innes’ absences shouldn’t have caused any problem. Also, because absent employees weren’t paid and disabled employees were assisted through the union, there wouldn’t be any financial hardship placed on Re-Con by accommodating his absences.

The tribunal also found Innes’ call to the supervisor at home before the shift on Jan. 27, 2004, was notice of absence according to the policy. The tribunal ordered Re-Con to pay Innes $33,464.38 for lost disability benefits and $5,000 damages for injury to dignity, feelings and self-respect plus expenses.

For more information see:

Innes v. Re-Con Building Products, 2006 CarswellBC 3492 (B.C. Human Rights Trib.).

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