Occupational absenteeism and dismissal
When an employee is often absent, the employer may conclude that the absences negatively impact the employee's performance. But it is not always easy for an employer to determine whether it has the right to dismiss an employee. A grievance arbitrator recently examined the issue in the matter of Syndicat des travailleuses et travailleurs de la Brasserie Labatt (CSN) and Brasserie Labatt (Lorne Brideau), D.T.E. 2011-103. It is important to keep in mind that the arbitrator must assess the situation based on the provisions outlined in the labour contract. The situation could therefore be different for a non-unionized employee.
In this particular case, the employee was dismissed because he had not been able to work on a regular basis since obtaining his permanent status in 2005. The employee had even been assigned to a position that was easy to fill in case of absence. To justify the dismissal, the employer compared the average absenteeism of plant workers to the employee's for each of the years in question. While the plant average was between 5.7 and 7.9%, the employee had been absent between 12.5 and 59.4% of the time. The employer also provided a list of the 22 causes of absence that the employee had invoked (most were illness-related).
The employee's absenteeism had drastically increased after he obtained permanent status, and the corporation had issued several written and verbal warnings. Even after the employer's final written warning, the employee missed a day of work. The employer then rejected the employee's reason and dismissed him.
Interestingly, the arbitrator stated that the absences due to illness were to be counted in the total number of absences since they had been included in the average rate of absenteeism for plant employees. The arbitrator also affirmed that the justifications for the absences were irrelevant in the case of an administrative dismissal.
The arbitrator stated that for chronic absenteeism, it was up to the employer to prove that the employee's absenteeism was excessive and unlikely to improve. In such cases, a medical report attesting to the employee's recovery or increased capacities is generally invoked. However, the arbitrator distinguished the situations in which absences are justified by an illness, chronic condition or disability and those in which the absences are justified by various reasons. It is therefore up to the employee to prove that the situation will eventually improve. The arbitrator affirmed that the employer could not submit medical evidence since the employee had given different reasons for his absences. The arbitrator also mentioned that the employee had been warned many times and was dismissed because he had not been able to ensure the work that was expected of him by his employer.