Category: Old Post

A question that often comes up is whether an employer can terminate an employee who is absent from the workplace where the absence is  innocent, yet excessive.

In Canadian Union of Public Employees, Local 1252 and Vitalite Health Network, a New Brunswick labour arbitrator, says “yes”.

This case concerned a nurse with excessive absenteeism over a 24 year period. These absences caused strain for her co-workers and the employer and had a negative impact on patients. The employer tried to address the issue through an attendance management program including meetings and letters and giving her a shift with regular hours in another department. During the period 2005 – 2010, the employer made it clear that the nurse would be suspended and/or terminated, if the behaviour was not addressed. When her attendance did not improve, the employer fired her. The arbitrator upheld the termination.

The basis for the termination was that an employer is entitled to expect a reasonable level of attendance from its  employees. Given the nurse’s behaviour over the  years, the arbitrator concluded that it was unlikely the employer could expect this in the reasonable future.  The arbitrator was also influenced by the fact that the absences were periodic and itermittent and were of a short duration which made it very difficult for the employer to find someone to fill in for the nurse or to plan for her absences.

While this case supports termination for excessive absenteeism, employers carefully assess the facts of each situation before terminating an employee. Constructive steps should be taken to address the absences in a proactive manner and the process should be well documented. Employers should also be careful to ensure that there is no medical reason for the absence and that it truly is “innocent” absenteeism.