Letters about innocent absenteeism are fair warning, says arbitrator (Legal view)

Communication informs, not punishes, employees

Nikola Kireta, an employee at Maple Leaf Consumer Foods had a habit of extending his weekends into the workweek. So did nine of his co-workers at the Burlington, Ont. meat-packing plant. Their attendance record in the first quarter of 2006 was so bad that, by the middle of April, they received letters from management warning them that if their record did not improve, they could find themselves with no job to go to any day of the week. Some of the employees failed to improve on attendance in the second quarter and by mid-June another warning letter was sent.

The union grieved that sending these letters was a disciplinary move and contrary to the collective agreement, especially an article related to time limits on discipline. It stated that no disciplinary action “shall be considered when the circumstances giving rise to it were more than three full working days after the facts occurred or were known” and noted a sunset clause of one year after which warnings were to be removed from the employee’s file.

Fortunately, the company had drawn up an attendance policy modelled on advice given in two other arbitration awards. The policy noted the company took attendance issues seriously and would monitor the situation of employees frequently absent from work. This included encouraging the employee to consider strategies to improve attendance, as well as ensuring the company would verify the reasons for frequent absences, make an effort to accommodate employees suffering from disabilities and establish whether the employee could attend regularly in the future. The message would be given to the employee, in the company of the union steward if he wished, in a series of escalating meetings: first with the supervisor, then the department manager, then the HR manager and finally the plant manager.

If the company determined at the end of this process the employee was incapable of coming to work regularly, it would consider the contract of employment to be frustrated. As a result, the employee would be let go. This is the nature of non-culpable or innocent absenteeism. An employer, having taken all steps necessary to accommodate a legitimate illness or disability and finding no hope that the employee can be at work regularly, cannot keep the worker on the payroll indefinitely.

The company’s lawyers argued that communicating to the employee by a followup letter was essential to getting across the serious message of the meetings. It would be “absurd” if the employer could have a meeting but could not write a letter confirming what was said.

The arbitrator agreed. He drew attention to a number of cases where non-disciplinary termination was at issue. In these situations, the employee is not being punished for misconduct but, in the words of an earlier arbitrator, “is being terminated for failing to live up to his part of the bargain by rendering services on a regular basis.”

The letters of warning were not disciplinary as they did not exact a penalty nor could they be used in a future disciplinary proceeding. However, they clearly stated the outcome if the employee’s behaviour did not change. In the words of another arbitration decision, “since the entire warning letter is prospective, setting out standards and possible consequences for the future only, it cannot be viewed as discipline.”

The letter in this situation fell into this category. It confirmed what had gone on in the meeting and gave the employees time to improve. In the words of another arbitrator, it would be “simply unfair to terminate an employee without bringing the situation to his attention.” A letter was just part of this process.

Another arbitration noted that unless the situation involves an illness the employee can do nothing to prevent, a warning may be the wake-up call the worker needs. Perhaps the employee has “failed to exercise due precaution” to prevent the absence or has failed to obtain the medical attention that could help cure the illness. Perhaps the employee needs to “tolerate certain minor illness or discomfort” and get to work. One thing that won’t prevent dismissal on the basis of on-going absenteeism is a series of doctor’s notes explaining the absences.

The worst thing would be for the employee to be “lulled into a false sense of security” by management’s continued failure to deal with the problem. Reviewing the situation regularly was essential to getting the employee to rectify the problem if at all possible.

In this situation, the arbitrator noted that non-disciplinary steps were taken to try to encourage behavioural change. The first letter notified the employee of the company’s concern, detailed the absences, and noted the hardship for other employees who had to pick up the slack. Then it stated the dire consequences. The second letter noted the ongoing concern, the second meeting, the hope for improvement and also restated the chilling outcome: the axe would fall if improvements weren’t made. As the arbitrator said, “none of this constitutes discipline.” Nor were the letters inappropriate or prevented by the terms of the collective agreement or the attendance policy.

The arbitrator dismissed the grievance, but added that if an employee were terminated for excessive absenteeism, the dismissal could be grieved and brought to arbitration. The company could use the letters as evidence that clear steps had been taken with the employee to address the problem and a clear message given as to the consequences of continued innocent absenteeism.

For more information: United Food and Commercial Workers International Union, Locals 175 & 633 and Maple Leaf Consumer Foods, an Ontario Arbitration Board decision; Robert D. Howe - Sole Arbitrator, dated Aug. 8, 2006.

Excessive sick time

Guidelines for absenteeism control

There are two types of absenteeism, each of which requires a different type of approach.

Innocent absenteeism

Innocent absenteeism refers to employees who are absent for reasons beyond their control, like sickness and injury. Innocent absenteeism is not culpable which means it is blameless. In a labour relations context this means that it can’t be remedied or treated by disciplinary measures.

Culpable absenteeism

Culpable absenteeism refers to employees who are absent without authorization for reasons within their control. For instance, an employee who is on sick leave even though he is not sick, and it can be proven the employee was not sick, is guilty of culpable absenteeism. To be culpable is to be blameworthy. In a labour relations context this means progressive discipline can be applied.

For the large majority of employees, absenteeism is legitimate, innocent absenteeism, which occurs infrequently. Procedures for disciplinary action apply only to culpable absenteeism. Many organizations take the view that through the process of individual absentee counselling and treatment, the majority of employees will overcome their problems and return to an acceptable level of regular attendance.

Identifying excessive absenteeism

Attendance records should be reviewed regularly to ensure an employee’s sick-leave days are actually excessive compared to other employees. If a supervisor suspects an employee is excessively absent, this can be confirmed through reviewing the attendance records.

If all indications show an employee is excessively absent, the next step is to gather as much information as possible in order to get a clearer picture of the situation. The employee’s files should be reviewed and the employee’s immediate supervisor should document all available information on the particular employee’s history.

Emond Harnden, an Ottawa-based labour law firm, has the following on its website:

It is important to keep in mind that absence may be either culpable or innocent; otherwise one risks having an attendance management program invalidated at arbitration. Culpable absence takes several forms, extending from fraudulently applying for sick leave at one end of the scale to lateness and failure to notify management of absence at the other. These may be dealt with through an appropriate disciplinary response.

On the other hand, absence due to illness or injury is referred to as innocent absenteeism. While this may become so frequent or excessive as to undermine the employment relationship itself, and may ultimately justify termination, an employer is not permitted to respond with disciplinary sanctions. The reason for this is that a sick employee is genuinely incapable of performing his or her duties.

Source: Benefits Interface

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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