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Duty to accommodate may not require tolerating excessive absenteeism
January 21, 2005

The Federal Court Trial Division recently overturned two decisions of the Canadian Human Rights Tribunal (the “Tribunal”) involving significant damages awards against a transit employer.

The Tribunal’s decisions were made in relation to two full-time bus drivers, Desormeaux and Parisien. Each employee was dismissed for chronic innocent absenteeism and subsequently filed complaints alleging discrimination on the basis of disability.

Desormeaux’s absenteeism resulted from a variety of unrelated ailments, including migraine headaches, which the Tribunal determined to be a disability. In assessing whether the employer had properly accommodated her, the Tribunal recognized that intermittent absenteeism could potentially create an undue hardship for an employer, where, for example, a small workplace is involved, and the disabled employee provides unique services. Here, however, the employer was a large bus company with a spare board of bus drivers who could replace Desormeaux when she was unavailable. As a result, the Tribunal concluded that tolerating Desormeaux’s intermittent absenteeism did not amount to undue hardship.

Parisien was dismissed as a result of chronic absenteeism in excess of 30% resulting primarily from post traumatic stress disorder. The employer argued, based on available medical information, that there was no reasonable prospect of improved attendance in the future and that tolerating ongoing absenteeism at this level amounted to undue hardship. The Tribunal disagreed. Since the company was a large employer with an highly interchangeable workforce, the Tribunal concluded the employer could have accommodated Parisien’s absences without undue hardship.

The Tribunal reinstated both employees. Desormeaux was awarded five years lost wages and special compensation in the amount of $4000. Parisien was awarded seven years lost wages and $3500 damages for hurt feelings. Both received interest on all monies awarded.

The employer successfully appealed the Tribunal’s decisions to the Federal Court, which determined there was insufficient evidence for the Tribunal’s finding that Desormeaux suffered from a disability. As a result, it was not possible to conclude that that the employer’s termination decision was discriminatory or that the employer has failed to accommodate her disability.

Further, the Court determined that Parisien was dismissed after the employer had properly concluded there was no reasonable prospect of improved attendance in the future. The Court observed that the nature of the bargain in an employment relationship is that employees will attend work on a regular and reliable basis. In turn, the employer will pay for services rendered. Excessive absenteeism potentially nullifies that relationship. Therefore, dismissing an employee who cannot satisfy the bargain cannot be considered discriminatory.

This decision is significant for employers because it suggests that even when an employer may practically be able to accommodate absenteeism, it is not necessarily obliged to do so once absenteeism has reached excessive levels and the prognosis for improved attendance is poor. The decision also reinforces that reasonable accommodation is only applicable to employees who are disabled, as distinct from employees who are suffering from an illness or injury that does not constitute a disability. Notwithstanding this ruling, employers should continue to assess each case on its facts and merits and proceed with considerable caution when assessing whether and what form of reasonable accommodation is appropriate.

Desormeaux v Ottawa-Carleton Regional Transit Commission, [2004] F.C.J. No. 2172, 2004 FC 1778, December 23, 2004