Chronic Absenteeism: Employer Rights and Obligations

(c) istock/Olivier Le Moal

This blog has previously considered the issue of the rights of chronically absent employees. However, there is a flip side to the situation: the rights of employers.

The two most frequently asked questions by employers with respect to the chronically absent are: (1) Can I fire this individual; and (2) If I can fire this employee, how much is it going to cost me?

Can I Just Fire Him?

The answer to the first question, whether an employer can dismiss an employee for chronic absenteeism, is typically yes. With certain exceptions (see e.g. section 239.1 of the Canada Labour Code and the decision in Kingsway Transport v Teamsters, Local Union 91 (John Sears Grievance), 2012 CanLII 20111, summarized by this blog in an earlier post Employer Cannot Dismiss CLC Employees Absent Due to Workplace Injury) employers are able to terminate any employee’s employment, provided that the employer provides the appropriate amount of notice and, where applicable, pays the appropriate amount of severance.

How Much Will it Cost Me?

How much it will cost an employer to fire a chronically absent employee depends upon a host of factors. A number of questions must be answered before a response can be provided.

Why is the Employee Absent?

First, consider why the employee is chronically absent. Is the employee absent because he has an illness, disability, family commitments, or some other legitimate, legally-recognized reason; or is the person simply disinterested in working? In most cases, it will be the former, but in all cases the employer must find out why the employee is missing work, document it, and then proceed with caution.

No Legitimate Reason

If the employer can demonstrate that the employee has been chronically absent from work for non-legitimate purposes, then it may be possible to terminate that employee for “just cause,” providing him with neither notice nor severance. Provided that the employee does not choose to litigate the issue of just cause, terminating this employee will cost the employer nothing.

Legitimate Reason

In most cases, the employee will have some sort of legitimate reason for being chronically absent from work: a recurring health problem (either their own or of their child or parent) being the most likely. In these cases, the employer has a legal obligation to attempt to accommodate the employee’s situation.

Duty to Accommodate

As most employers know, there is a legal obligation to accommodate an employee who has a bona fides disability to the point of undue hardship. As the Ontario Divisional Court set out in Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605, there is both a procedural and substantive obligation to accommodate a disabled employee; meaning that an employer must at least try to accommodate and must also be prepared to demonstrate that it did so, but was unable to accommodate.

However, as the Supreme Court of Canada made clear in the case of Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561, an employer need not show that it is impossible to integrate an employee into the workplace, only that doing so would result in undue hardship, which, as the Court observed “can take as many forms as there are circumstances.”

With respect to the issue of chronic absenteeism as caused by an actual, recognized and documented disability, the Honourable Justice Deschamps of the Supreme Court of Canada wrote in Hydro Quebec:

[18] If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.

[…]

[19] The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

Thus, if the employer can demonstrate that it has tried to accommodate the employee, but, under the circumstances, is not able to do so, the employer may be able to terminate the employee without running afoul of the protections of the Ontario Human Rights Code or Canada Human Rights Act. What will be required by way of attempts to accommodate will vary with the circumstances of the employee: what is the position the employee held; how long has the employee been employed; and, perhaps most importantly, did the employer provide or make arrangements for a long-term disability plan for the employee? These sorts of considerations should be made in conjunction with an employment lawyer.

The failure to accommodate a disability can result not only in an award of wrongful dismissal damages, but also an award of damages under the Human Rights Code. Pursuant to section 46.1 of the Ontario Human Rights Code, an employee can advance a claim for monetary compensation under the Code in the same lawsuit as claims for wrongful dismissal damages. These awards can become quite costly for employers. (See for example my posts on this topic: Employee Fired for Receiving WSIB Benefits Receives Human Rights Damages and Ontario Human Rights Damages to Dismissed Breast Cancer Employee Affirmed)

The Legitimately Sick, but Never Returning Employee

There will be cases where an employer will be able to demonstrate that an employee will never be returning.

With respect to employers governed by the Ontario Employment Standards Act, 2000, if the employer can demonstrate that the employee will never return, then it may be possible to terminate the employee upon the provision of the minimum amounts of notice and severance as prescribed by the ESA. However, as I blogged about in one of my very first posts, Frustration of Contract need not be Frustrating, employers need to be mindful that if the reason “the employer… is unable to continue employing” the employee is because of an “illness or injury suffered by the employee,” then pursuant to subsection 2(3) of O. Reg. 288/01 employers must provide those statutory minimums.

On the continuum of costs to terminate a chronically absent employee, this is the second-best option, although the costs of obtaining the medical evidence necessary to prove this point can be substantial.

The Potentially Returning Employee

In the previous section I mentioned cases where an employer will be able to demonstrate that an employee will never be able to return, and added the caveat that obtaining the medical evidence to prove such a position could be costly.

The case of Naccarato v. Costco, 2010 ONSC 2651 (CanLII), serves as an important reminder of the consequences of failing to obtain that evidence or being able to demonstrate that an employee will never return.

In Naccarato Justice Pollack, citing with approval the decision of the Honourable Justice Perell in the case of Dragone v. Riva Plumbing Limited, 2007 CanLII 40543 (ON SC), held that “the onus was on the employer to prove that the contract had become frustrated and that it was not the employee’s onus to provide medical evidence with respect to her ultimate prognosis.”

Thus, in Naccarato, although the employee had been absent from work for a period of five years, Justice Pollack found that the employee had been wrongfully dismissed by his employer, and was entitled to common-law notice of termination, not just statutory minimums.

The implications of such a finding can be huge when one considers the implications of benefits. As frequently mentioned in this blog, employers have an obligation to maintain an employee’s access to benefits throughout the notice period. Where an employer fails to do so, and an employee later falls ill, the court may order the employer to stand in the disability insurer’s shoes. (On this point see my posts The Requirement to Maintain Disability Benefits on Dismissal and The Benefit of Benefits, as well as my posts about benefits generally.)

Putting it All Together

The question of how much it may cost an employer to terminate a chronically absent employee can be answered using the table below, which essentially sets out the continuum on which an employee can fall.

Situation	Employer’s Legal Position	Cost to Terminate
Culpable chronic absenteeism without excuse	Just Cause	Nil
Chronic absenteeism, where employer cannot accommodate employee	Frustration	Minimum amounts prescribed by Employment Standards Act
Chronic absenteeism, where employee can be accommodated	Not very good	Wrongful dismissal damages, potentially Human Rights damages, and maybe even an award of reinstatement with back wages

As one can see, the continuum runs from not having to pay anything, to being ordered to pay upwards of two years' salary; plus potentially damages for violations of the Human Rights Code; plus, if the employer impedes an employee’s ability to obtain disability benefits from a disability insurer, potentially an order to pay the dismissed employee’s long-term disability benefits until age 65 or longer. In the most extreme case, the cost could easily each into the hundreds of thousands of dollars.

Takeaways

The takeaway for employers is this: terminating any employee should always be done on the advice of experienced legal counsel. In the case of a chronically absent employee, employers would be very well advised to use extreme prudence in terminating that employee’s employment because doing so improperly can, as the above examples illustrate, result in very expensive awards by the court.

If you are an employer and you are faced with the situation of a chronically absent employee, and you are looking for advice, contact the employment lawyers at Kelly Santini LLP would be happy to speak to you. An ounce of prevention can certainly be worth more than a pound of cure.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

This posted edited by: Kathleen Fletcher of Words Write | kwfletcher@live.com