Last straw for employer not last straw for absent worker

Worker’s absenteeism reached extreme levels, but employer didn’t follow progressive disciplinary approach before cutting her loose

A Newfoundland and Labrador government department must get updated medical information and investigate accommodation options after it dismissed a worker for excessive absenteeism over several years.

The worker was a client services officer in the Department of Advanced Education and Skills with the Newfoundland and Labrador provincial government. Her job duties included determining eligibility for support and monitoring the integrity of the program, while referring clients to other government departments or outside agencies. Much of this work was done through email and telephone.

The worker came to management’s attention in 2008 due to a number of absences. The government’s integrated disability manager met with the worker and her manager to see how they could help the worker remain in the workplace, but the worker thought she was going to be fired and was upset.

The following year, there were still attendance concerns with the worker. In the 2008-2009 fiscal year, the worker had used 24 paid sick days and 95 days of special leave unpaid (SLUP) — the latter a type of leave available when paid sick leave was used up. In December 2009, the worker was referred to the employee assistance program (EAP) and a functional abilities report form (FARF) was provided for the worker’s doctor to complete to help the department assist the worker with her attendance.

The worker’s psychiatrist completed the form and indicated the worker had no work restrictions nor any reason to miss work. Over the next fiscal year — 2009-2010 — the worker’s attendance improved, though it was still considered excessive with 44 SLUP days used after her sick leave was exhausted. There was a lot of sick leave used in the department, but the worker’s was still notably more than others.

In the 2010-2011 fiscal year, the worker’s sick leave was more sporadic and she didn’t use it up until October. She only used a few SLUP days and no action was taken because the worker’s attendance continued to improve.

However, things got worse in 2012. Over the 2012-2013 fiscal year, the worker used 149 days in total of sick leave and SLUP days, including the entire month of July. The integrated disability manager discussed it with the worker, who said she had some anxieties about answering the telephones.

Attendance worsened

By January 2013, it became apparent that the worker’s attendance record was worse than the previous three fiscal years combined and worse than 2008-2009. The disability manager asked the worker for additional medical information and provided a new FARF. The worker’s doctor indicated on the form that the worker had no restrictions on returning to work full-time and no restrictions to the cognitive and social demands of dealing with clients.

The worker returned to work on March 4, 2013, but only lasted three days before going off again for the rest of the month. The disability manager was aware the worker had shown behavioural issues regarding the payroll and requested more information from the worker’s doctor about the worker’s attendance issues. The doctor indicated they were discussing medication changes and counselling and the worker had “good potential for improvement” in her attendance.

The worker returned to work on April 1 but was upset with the mention of her behaviour to her doctor. After one week, she took sick leave again for another two weeks. She returned for three days and then went on vacation. By June, the worker had exhausted both sick leave and vacation leave, but she had only worked four days that month. The disability manager couldn’t understand what was going on, since the medical reports indicated the worker could work regularly.

By July 2013, the worker had already taken nine sick days and 22 SLUP days out of 68 working days in that fiscal year. She was advised her attendance needed to improve and if a need for accommodation was identified, the department would work with her and the union. The department also said it required medical clearance for a return to work, since the worker was off work at the time.

The worker mentioned she had been diagnosed with depression, which was why she was missing work, but there was no medical evidence indicating she couldn’t work.

Over the next three months, the worker missed another 28 days with no medical documents supporting her absences. The manager of employee relations met with her twice to advise her that things needed to improve or her job would be in danger, since her absences were disruptive to the department and customer service suffered when it was short-staffed.

The worker told the manager she had colitis and submitted a FARF from another doctor indicating she had colitis in addition to depression, though no functional limitations were identified and monitoring would continue.

The worker showed an inability to work more than a few days or partial days before being absent over the next few months. After meeting with the disability manager, the worker continued to show up sporadically, only being present for roughly half of the working days from May to July. The worker’s doctor responded to a query by saying there were days the worker could do cognitive abilities, which is when she went to work, and days she couldn’t, which is when she stayed home. The doctor also said the worker was engaged in a treatment plan but was not always able to do it.

The department still didn’t have any indication of the worker’s limitations or restrictions and was at a loss. On Oct. 7, it placed the worker on “special unpaid medical leave” pending an independent medical examination. This resulted in an assessment that the worker was fit to return to work immediately with no limitations.

The department informed the worker in January 2015 that she had full clearance to return to work, her attendance and behaviours in the workplace would be monitored and further attendance issues would subject her to discipline up to and including dismissal.

The worker’s attendance remained at acceptable levels for a few months, but by April and May she was absent 24 days over the two months. Another report from the worker’s doctor in June indicated the main problem preventing her from working regularly was her depression, but they were adjusting her medication and “hopefully over time she will improve sufficiently to attend work more regularly.” At this point, the department was considering termination.

Worker dismissed after absence following 2 weeks of attendance

There continued to be gaps in the worker’s attendance, with her missing seven-and-one-half days in July and four days in August with no medical explanation — the average for provincial government employees was one day a month. The worker was at work for two full weeks without an absence in the second half of August, but took a SLUP day on Aug. 31. The next day, the department dismissed the worker for innocent absenteeism, with the termination letter stating: “Despite our efforts to work with you to improve your attendance, your level of absenteeism remains excessive and continues to negatively impact operations. Given your attendance history, we are left to conclude that we cannot expect a sustained improvement in your attendance in the future.”

The arbitrator found that the department used a reasonable standard — the one-day-per-month average level of absenteeism for provincial government employees — and, in comparison, the worker’s leave was excessive. In addition, the unpredictable nature of the absences aggravated the problem, as did the lack of concrete information on whether things would improve.

However, the arbitrator found that wasn’t reasonable for the department to “continue on the path to termination” when there may have been indications things were improving. The worker attended work for two weeks without an absence and had four days total leave in August, but she was terminated her after being absent Aug. 31, as if the department had been waiting for her next absence. Since the last doctor’s report in June indicated the worker’s medication was being changed, it would have been reasonable to see if there was a correlation between the improved attendance in August and the new medication regime. Without this information, the department didn’t have a real prognosis for the worker’s future prospects with attendance, said the arbitrator.

The arbitrator also found that the worker’s depression was limiting her ability to be at work, but the employer didn’t fully consider whether it had reached undue hardship since it was operating with the information that the worker had no restrictions. However, it should have realized the worker was being hindered by her disability, said the arbitrator.

In addition, while the department told the worker a few times her employment would be in jeopardy if her attendance didn’t improve, it never pursued a disciplinary approach and continued to tolerate her absences as non-culpable. The worker was never formally warned that termination was pending.

The department was ordered to reinstate the worker, pending medical clearance for her return to work, and to accommodate her to the point of undue hardship if accommodation is deemed necessary. If it was determined by doctors that the worker was unable to return to her client services officer position or an available alternate position and attend on a reasonable basis, the department would be entitled to terminate the worker.

For more information see:

Newfoundland and Labrador and NAPE (M. (S.)), Re, 2016 CarswellNfld 411 (Newfoundland and Labrador Arb.).

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