Unauthorized absences over three days just cause for dismissal, court says

An employee’s multiple absences were sufficient to warrant his dismissal, a Nova Scotia court has ruled

Michael Hunter worked as a junior developer for Halifax-based office telecommunications service provider Webcentrex Inc. He began his employment with the company on March 20, 2006. His employment contract stipulated normal office hours were 9 a.m. to 5 p.m. with a one-hour lunch break. He was expected to work 37.5 hours per week.

On Friday, March 23, 2007, Hunter didn’t show up for work. Webcentrex called and e-mailed him to find out where he was. Hunter replied through e-mail that he wouldn’t be in to work that day due to a “personal issue.” The common practice for illnesses was employees were required to advise the employer they weren’t coming in to work. For other absences, they were required to get authorization in advance.

The next workday, Monday, March 26, Hunter came in to work around 9 a.m. and found out he couldn’t use his computer due to some work that had been done on it. He left for home because he said he need to send some e-mails, returned in the early afternoon and picked up some books before leaving again. As it turned out, he had been exchanging e-mails with another company regarding his application for another job.

The following day, March 27, according to Webcentrex, Hunter arrived at work at 10:30 a.m. and worked on a programming test on his computer, asking some co-workers for help. Hunter was called into a meeting that day and was fired for unauthorized absences. The court found Hunter’s combined absences over the three days constituted serious misconduct. It also found the time off was taken under false pretences. Hunter had said it was for personal reasons, but in reality he was searching for another job.

“While one explained absenteeism would not normally constitute sufficient cause to terminate an employee without notice, the employee has taken unauthorized time away from the office over a two — or, arguably, a three — day period,” the court said. “That cannot be easily overlooked.”

Because Hunter was absent without a good reason for all of March 23 and parts of March 26 and March 27, he didn’t have a good reason for his absence and he was a junior employee who “would not be considered to have latitude to set his own hours,” the court ruled Webcentrex had just cause to fire him without notice.

“At its most basic, this amount of unexplained and unjustified absence for three days in a row does constitute a repudiation of the employment contract to such a degree that the employer was entitled to summarily terminate the employment relationship,” the court said. See Hunter v. Webcentrex Inc., 2007 CarswellNS 331 (N.S. Sm. Cl. Ct.).

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