Employee continued to miss work after accommodations were implemented
This instalment of You Make the Call features an employee who was terminated after she couldn’t do her job under modified work conditions.
Sue Thomson worked for the Sault Area Hospital in Sault Ste. Marie, Ont. On March 18, 1990, she injured her right arm, shoulder and neck trying to catch a drawer that fell out of a filing cabinet. She was off work for 18 months during which she underwent three operations and received workers’ compensation.
Thomson returned to work in May 2001 after completing a functional capacity evaluation that concluded she could be accommodated in the position of medical records technician. She later moved to a new workstation and a position of ER coder that met her restrictions. The hospital’s ergonomist recommended modifications to Thomson’s workstation and processes as comfort issues arose.
Thomson had numerous absences throughout 2003 and 2004. She finally had to take several months off from November 2004 to July 2005, except for two brief periods of modified work. Her doctor completed several functional abilities reports that justified her absences. Overall, between 2002 and 2007 Thomson averaged 63 sick days a year, with a high of 105 one year. The average sick time for employees was about seven days a year.
In March 2008, the hospital sent a questionnaire to Thomson’s doctor asking him whether her condition would improve. The doctor replied that he didn’t expect her condition to improve and would need a new job that required less use of her arms and shoulders.
The hospital concluded it had provided all accommodations requested by giving her an appropriate job and performing multiple ergonomic assessments of her duties and workplace, which resulted in numerous adjustments. Eventually, the ergonomist found there was little relationship between the job duties and Thomson’s injury.
The hospital felt it didn’t have a job that met all of the doctor’s suggestions and her ER coder position met her restrictions. Thomson was put into the hospital’s attendance management program and told regular attendance was necessary for her job, since excessive absences hurt the hospital’s ability to provide its services and put additional workload on other staff. The hospital warned her if her sick time exceeded its criteria, she would progress in the program until she lost her job. Thomson suggested she move to another job that had less computer work but the hospital’s assessments showed there weren’t any positions that met her restrictions.
Thomson’s attendance did not improve despite the attendance management program and the hospital terminated her employment because “medical documentation indicates your attendance is not expected to improve.”
You Make the Call
Did the hospital have just cause for dismissal from excessive absenteeism?
OR
Should the hospital have done more to accommodate Thomson?
If you said the hospital had just cause for dismissal, then you’re right. The arbitrator found Thomson’s rate of absenteeism, at six times that of her co-workers, was “excessive in an absolute sense” and over a long period of time. This, along with the fact modified work didn’t decrease the absences, made it unlikely her attendance would improve, said the arbitrator.
The arbitrator agreed the other positions Thomson felt she should have been offered weren’t any less demanding than the one she was in and didn’t match the restrictions of her modified work.
The arbitrator also found Thomson was well informed about the effects of her absenteeism and the consequences if she didn’t improve, through the attendance management program. However, she was still not able to go to work regularly despite the fact her job met her restrictions. As a result, her absenteeism undermined the employment relationship to the point that her continued employment would present undue hardship to the hospital. The arbitrator upheld Thomson’s dismissal for her inability to fulfil her job duties because of excessive absenteeism. See Sault Area Hospital v. CAW-Canada, Local 1120, 2010 CarswellOnt 2004 (Ont. Arb. Bd.).
