Absences due to cumulative illnesses qualify for statutory exception allowing entitlement
An Ontario worker is entitled to statutory termination pay and severance pay after her employment contract was frustrated by a pattern of absenteeism caused by multiple illnesses and an injury, an arbitrator has ruled.
The worker was a nurse employed with Unity Health, a Catholic hospital network in Toronto.
The worker started having significant problems maintaining consistent attendance at work. She suffered complications from her pregnancy, which caused a number of absences, and broke her ankle on another occasion, causing another absence. However, she developed a pattern of absences for other reasons, and this led to Unity Health putting her on an attendance management program.
The worker’s attendance initially improved, but soon worsened. She progressed through attendance management, sometimes improving but never able to sustain the improvement. Eventually, Unity Health terminated the worker’s employment for innocent absenteeism.
The union challenged the dismissal, arguing that the worker’s absences were for various illnesses and injuries and the dismissal was a violation of the collective agreement and the Ontario Human Rights Code.
Termination for innocent absenteeism upheld
An arbitrator upheld the worker’s termination, finding that the worker’s absences were not caused by a particular disability that required accommodation or frustrated the employment contract, and the worker did not request accommodation – although the arbitrator accepted that the worker’s absences were from “several illnesses over the many years of her employment, and an injury.” Given the pattern of poor attendance with no underlying disability, the arbitrator found there was no reasonable prospect of the worker’s attendance improving in the future and the employer’s duty to accommodate was at an end.
The arbitrator’s decision was upheld upon review and the termination was confirmed. However, Unity Health and the union disagreed over whether the worker was entitled to termination pay and severance pay under the Ontario Employment Standards Act, 2000 (ESA).
Both Unity Health and the union agreed that the employment contract was frustrated by several illnesses along with her ankle injury, but no single enduring illness or injury that prevented her from working.
Unity Health declined to provide any termination or severance pay, as s. 55 of the ESA states that “an employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event of circumstance” is not entitled to termination pay, while s. 9 of the ESA regulation made the same exception for severance pay.
Exception for frustration from an illness
However, the union pointed out that both the ESA’s and regulation’s exceptions to termination and severance pay, respectively, had their own exceptions. Section 2(3) of the ESA states that the termination pay exception “does not apply if the impossibility or frustration is the result of an illness or injury suffered by the employee” while s. 9(2)(b) of the regulation says the same for the severance pay exception. As a result, the worker was entitled to statutory termination and severance because her employment was frustrated because of illness and injury.
Unity Health countered that the exceptions raised by the union only apply if “an” illness or injury caused the frustration of employment, not multiple, unrelated illnesses and an injury. It argued that the principles of contract and legislative interpretation required them to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament.” The use of the word “an” meant that the exceptions to the termination and severance pay exceptions required a “severe and prolonged” injury that essentially was a disability to frustrate employment. In this case, the arbitrator specifically found no disability and the worker’s frequent absences were caused by “an accumulation of different illnesses and an injury, none of which was unrelenting and enduring, like a disability.”
Another arbitrator noted that severance pay was primarily a mechanism of transition to new employment and the Ontario Court of Appeal had previously found that arguing that a disabled worker was unlikely to return to work and therefore wasn’t entitled to severance pay was “based on an arbitrary or misleading stereotype that disabled persons cannot fully participate in the workforce.”
Broad interpretation avoids discrimination
The arbitrator found that the inclusion of the word “an” before “illness or injury” in the provisions did not disqualify the worker from termination and severance pay. They only require that the cause of the frustration be illness or injury – such that the combination of each illness or injury is what caused the absences. To find otherwise would disentitle an employee with two or more medical conditions that combined to create a disability and therefore discriminate against certain types of disability, the arbitrator said.
“Why, then, can’t the accumulation of combined illness/injury absences make up the required condition to receive the entitlements?” said the arbitrator, noting that the provisions don’t specify a disability and only refer to an illness or injury. “In the [worker’s] case, she was legitimately absent because of illnesses and injury; that is what caused the frustration of her employment relationship with the employer.”
The arbitrator determined each and every instance when the worker’s employment was frustrated by her absences was because of an illness or an injury. As a result, the worker was entitled to statutory termination and severance pay.
