WHERE INNOCENT
ABSENTEEISM HAS BEEN EXCESSIVE A discharged grievor must be able to show why this will not continue
In, Re
Pasteur Merieux Connaught Canada and Communications, Energy and Paperworkers Union,
75 L.A.C. (4th) 235 (Knopf), the arbitrator dealt with a grievor who was 40
years old and had 15 years’ seniority. He had no disciplinary record. He lived with
and cared for a sister who was terminally ill. Unfortunately, the grievor had a long and
extensive history of absenteeism. All the absences were accepted by the Employer as
legitimate in terms of being genuinely related to accidents or illnesses. Some were
sporadic or short term absences. Some were long term. For all the long term illnesses or
injuries, the Company allowed modified duties or assignments that could facilitate his
return to work.
Records dating back to 1990 indicated repeated counselling resulting in
the grievor’s promises to "improve" attendance and to achieve equal to or
better than the plant average. The grievor was also repeatedly offered the assistance of
the Company’s Health Centre and its Employee Assistance Program. Absences continued
to occur and the grievor was finally discharged.
Counsel for the Union argued that the grievor has been terminated
without just cause. It was stressed that he had 15 years’ seniority with this
employer, had no history of performance difficulties and was acknowledged to be an
"intelligent, conscientious and a hard worker". There were said to be several
reasons why the termination should be overturned.
First, it was said that the Employer acted improperly because there was
no "culminating incident" to justify termination for non-culpable absenteeism.
Second, or in the alternative, it was argued that the grievor had
entitlement to the benefits of the Short Term Disability Plan under the collective
agreement. It was argued that it would be unfair for the Company to rely on absences which
are covered by the Short Term Disability Plan in order to justify a discharge.
Third, it was argued that the termination violated the Human Rights
Code. The arbitrator was reminded that the Human Rights Code of Ontario
prohibits discrimination in employment on the basis of "handicap".
The arbitrator ruled:
I conclude from the cases that in order to justify a discharge the
company must establish: (a) undue absenteeism in the grievor’s past record, and, (b)
that the grievor is incapable of regular attendance into the future.
I am also satisfied that the company may look at the past attendance
record as well as other factors for the purpose of drawing inferences or concluding that
the grievor is not capable of regular attendance into the future. .
The evidentiary onus then shifts to the union and to the employee to
establish facts which negate the probability of making the inference from past record to
future prognosis..
I also conclude that in those cases where there was no expectation
that the attendance would improve the discharges were upheld, whereas in those cases
where there was some evidence of a foreseeable likelihood of change into the future the
employee was reinstated subject to certain terms.
These principles must be applied to the particular facts of this case.
Therefore, the Company has clearly succeeded in establishing undue absenteeism in the
grievor’s past record over 9 ½ consecutive years.
The only serious issue in dispute is whether the evidence establishes
the grievor is incapable of regular attendance in the future. There is no pattern of
illnesses or injuries and no evidence of ongoing or chronic diseases or conditions.
Therefore it is tempting to believe that there is nothing that would prevent future
regular attendance.
However, such a conclusion could only be reached by ignoring several
critical and relevant factors. His pattern of successive problems belies the prognosis of
future regular attendance.
An arbitrator needs some factor to justify reinstatement. Such a factor
can be a signal that past patterns are broken and that new patterns will emerge. In all
the cases cited by the Union there was evidence that the cause of problems had been
resolved. This was usually supplied in the form of medical evidence addressing the
underlying causes in the past. There is no such evidence available in this case. There
were no cases presented that have resulted in reinstatement in the face of excessive
absenteeism where there is absolutely no evidence of changes in the grievor’s
circumstances or health.
The Employer also has the right to expect regular attendance and cannot
be faulted for terminating the grievor after having tried so long in so many different
ways to accommodate the grievor’s personal needs.
It cannot be said that the Company should have waited for a
"culminating incident" before effecting the discharge. The Company promised the
grievor a six-month review. The Company fulfilled that promise by allowing the grievor a
full six months of employment after the final warning.
In response to the issue of the collective agreement’s guarantee of
short term disability benefits, it cannot be said that these provisions entitle the
grievor to be absent on a regular basis in amounts equal to those contemplated under such
plans. There are no cases that can be found where an arbitrator has held that short term
disability benefits in collective agreements may be read as the appropriate level of
acceptable absenteeism. These plans are not a licence for absenteeism.
It cannot be said that the Company’s actions have violated the
Code. First, there is nothing in the Human Rights Code that prohibits an employer
from terminating an employee on the basis of innocent absenteeism. The Code prevents
discrimination, it does not prevent a termination of employment.
Accordingly, it is with regret that I must conclude that the Company has
fulfilled the onus of establishing that the grievor is incapable of regular attendance in
the future.
This case makes it clear that, to justify a discharge for innocent
absenteeism, an employer need really only establish undue absenteeism in the past and then
the onus is on the grievor to show why this will not continue.
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