How much sick time is too much? (Legal view)

New Brunswick hospital worker rejected for job because of poor attendance

Dawn Teakles was a casual employee in the housekeeping department of a Moncton, N.B., hospital. Her job description guaranteed her only 30 hours of work every two weeks.

There were a number of factors that made the job less than optimal for her. Teakles had injured her back in a car accident and it would act up after several days of mopping floors. Her work schedule was not posted until as late as Thursday or Friday for the following week, making it difficult for her to guarantee her attendance. This was especially problematic after she had a baby and needed to arrange child care or take the baby to the doctor. Nevertheless, she managed to work about 90 per cent of the hours of a full-time employee during nearly four years as a casual. Not surprisingly, when a permanent and less physically demanding job as a ward clerk was posted, she applied for it.

She was turned down in favour of an employee with less seniority. The sole reason was that she did not have a good attendance record — and a good attendance record was posted as one of the job’s essential requirements.

She filed a grievance which led to an arbitration hearing. In it, she first disputed the accuracy of her attendance record. She claimed an average of nine days’ absence per year over the previous three years, close to the hospital average of 9.32 days and well below the housekeeping department average of 13. However, Simone Jobin, the HR advisor for the hospital, suggested not all of her absences were recorded on payroll records as sick leave since she had used up her sick days.

The union argued that since she had never been disciplined for her absences and since they were for valid reasons, she had been denied the job on the basis of innocent absenteeism. The onus was therefore on the employer to prove her future record would be unacceptable. The union representative suggested a trial period would have quickly shown whether she could have met the required standard.

The hospital countered that Teakles had been warned, in writing, about her attendance problems. One of the letters, written after an annual performance review, had specifically indicated she needed to improve her “punctuality, attendance and availability.” Another letter called attention to the fact that future jobs, promotions and transfers depended on good attendance. And because good attendance was named in the job posting as an essential job requirement, it was incumbent upon Teakles to convince the interviewers her attendance record would improve. She hadn’t done this. Asking for a trial period was irrelevant, as she did not meet the qualifications for the job in the first place.

Answering three questions

The arbitrator agreed a successful candidate had to meet all the requirements for the job and a good attendance record was named as one of them. However, he needed the answers to three questions to determine whether or not Teakles met those requirements.

The first involved the significance of the collective agreement’s “threshold clause” for choosing who would fill a vacant position. Such a clause means the most senior qualified employee applying for a job is entitled to the position as long as the person meets the necessary requirements. The other kind of job posting clause is a “competitive clause” by which the best qualified candidate is chosen with seniority becoming a factor only if the candidates are more or less equally qualified. The arbitrator said it was necessary to ask whether the hospital set essential qualifications too high, especially since a threshold clause was in the collective agreement.

Second, was it reasonable to set a good attendance record as an essential qualification? Only a “good prior work history” was mentioned in the job description. Presumably this encompassed an expectation for at least reasonable attendance. But how would a “good” attendance record be defined? Was it below the average of 9.32 days for the hospital as a whole, below the 13 days in the housekeeping department, below the eight days posited as a corporate goal or below another figure considering that days were set aside in the collective agreement legitimately as sick days?

Third, did the hospital apply the “attendance record” qualification reasonably? The arbitrator observed that while that particular ward clerk’s position was important to maintaining patient flow, it was not more complex or more skilled than other clerk positions in other parts of the hospital from which a substitute could be drawn if needed. He concluded the hospital “set the attendance standard too high for the posted position.” Asking for “regular attendance” would have been enough.

More importantly, it was the future prospect for good attendance that had to be weighed against the past record. For Teakles, regular predictable hours would likely enhance her ability to plan child care and a more sedentary job would likely do her back some good –– at least that is what she was reported as saying during a later grievance interview. The arbitrator supported the view that “allowances must be made for temporary increases” in an employee’s days of absence and this applied to the increase in absences that had followed the birth of her baby.

It would be hard not to regard “good attendance” as a relevant criterion for any job. The difficulty, said the arbitrator, is in defining “good” in relation to the type of job posted. Also it is necessary to examine carefully whether an apparently iffy past attendance record is a reliable indicator of future behaviour. This consideration is especially true “when promotion is based on a threshold clause.”

In siding with Teakles, the arbitrator also noted that while it is up to employees to give insight persuasively on their personal circumstances during a job interview, it also behooves an employer to allow time for an employee to give a “careful response” to questions about attendance records they may have little understanding about –– especially if their promotion depends on it. Although Teakles won the case, a more senior employee was given the position.

For more information see:

Teakles v. South-East Regional Health Authority, 2005 CarswellNB 793, [2006] L.V.I. 3613-4 (N.B. Arb. Bd.).

Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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