The BC Supreme Court recently upheld the decision of an arbitrator denying the grievance of an employee dismissed for excessive absenteeism. This case confirms that employers may lawfully dismiss an employee for excessive innocent absenteeism where the employee has been given an opportunity to improve his or her attendance and warned that a failure to meet attendance standards could result in dismissal. If the absenteeism is linked to a ground protected under human rights legislation, dismissal may still be a permissible response if the employer has accommodated the employee to the point of undue hardship, but he or she remains unable to work for the reasonably foreseeable future.
At the time of termination, the grievor was a 25 year employee suffering from depression, anxiety and a number of other health problems, which the employer had addressed by accepting significant levels of absenteeism for almost fifteen years, as well as implementing all other accommodations requested by the grievor. The issue of attendance was raised repeatedly with the grievor in more than twenty discussions and seven formal letters, the last four of which warned the grievor she could be dismissed if her attendance did not improve. Significant absenteeism continued and the grievor was dismissed as a result. The matter proceeded to arbitration.
The arbitrator dismissed the grievance, finding the grievor’s history of excessive absenteeism was significant. She remained unable to attend work on a regular basis at the time of termination, despite the employer’s efforts and warnings. As a result, the employer had just cause for dismissal. The arbitrator also found that the employer had met its duty to accommodate, stating it would be unreasonable to expect the employer to tolerate continued absenteeism as there was a limit to accommodation.
The union asked the Court to set aside the arbitrator’s decision, claiming the arbitrator failed to recognize improvement in the grievor’s attendance in the months preceding the termination. It also argued that the employer’s warnings were not sufficient; the last one being issued two years prior to the termination. The union also disputed the arbitrator’s finding that the duty to accommodate had been met.
The Court rejected the union’s arguments and upheld the arbitrator’s decision. First, the arbitrator had correctly viewed the grievor’s total attendance record in determining that her absenteeism was excessive, rather than adopting an inappropriate compartmentalized approach. Second, the grievor received sufficient warning of potential termination, in light of the numerous attendance letters and discussions. Finally, the Court refused to interfere with the arbitrator’s ruling on the issue of accommodation. The union’s application was dismissed.
If you have any questions regarding this article, please contact Scott McCann, Partner.