• Innocent Absenteeism and Post-Discharge Evidence
  • December 6, 2010 | Author: Mark D. Tector
  • Law Firm: Stewart McKelvey - Halifax Office
  • Employees who have excessive absences from work may be discharged by their employers for just cause, even if the employees are not to blame for their absences.  In order to dismiss an employee for “innocent absenteeism”, it must be shown that (1) there is a record of excessive absences; and, (2) there is a reasonable expectation that the absences will continue. 

    Determining whether excessive absences will continue in the future can often be difficult.  If the employer’s decision to terminate is grieved, one of the big questions at arbitration is the date for determining the employee’s prognosis for future regular attendance.  Is it (1) at the date of dismissal - when the employer makes the decision to terminate; or (2) at the date of the hearing - when the arbitrator is reviewing whether the employer’s decision to terminate was justified?

    There are two decisions from the Supreme Court of Canada (each reaching a different conclusion) that have guided this debate.

    The first is the 1995 decision of Quebec Cartier.  In that case, the Supreme Court of Canada addressed the use of post-discharge evidence in the context of innocent absenteeism and ruled that the date for determining prognosis for future regular attendance is at the date of dismissal and, therefore, the evidence was limited to evidence existing at the date of the hearing.

    The second is the 1997 Supreme Court of Canada decision in Board of Education for the City of Toronto.  In that case, a teacher had been dismissed in January 1990 partly as a result of two disturbing letters the teacher had written to his employer.  In August 1990, after the dismissal but before the arbitration hearing began, the teacher wrote another similar disturbing letter.  One of the issues at the Supreme Court was whether the post-discharge August 1990 letter could be used to support the discharge.  The court said it could be used to the extent that it helped to shed light on the reasonableness and appropriateness of the dismissal and whether the employee/employer relationship could be rehabilitated.  In the result, the decision to discharge was upheld.

    A recent Ontario arbitration illustrates this extension of the Board of Education for the City of Toronto analysis.  In The Corporation of the City of London and The London Civic Employees Local Union No. 107, the issue of admissibility of post-discharge evidence was raised in the context of an employee’s long history of alcohol and drug addiction and eventual dismissal for excessive absenteeism. Following his dismissal, the grievor received addiction treatment and had not used alcohol or drugs for nearly two years. There was considerable medical evidence assembled, by the time the arbitration was heard, that the grievor had a good chance of maintaining reasonable attendance at work. The question before the arbitrator was whether this post-discharge evidence (which was unavailable to the employer at the time of dismissal) could be used in reviewing the discharge.

    Arbitrator Snow distinguished the Quebec Cartier approach on the basis of what he believed were significant differences in the operating statutory and collective agreement provisions and chose to follow the Supreme Court’s Board of Education decision.  In particular, Arbitrator Snow relied on his ability to substitute a “just and reasonable” penalty in the absence of a specific penalty (based on the terms of the collective agreement and the Ontario legislation).

    Arbitrator Snow admitted the post-discharge evidence and concluded he had the jurisdiction to substitute another penalty for the dismissal where it seemed “just and reasonable in all of the circumstances” to him.  Arbitrator Snow reinstated the employee, but with no backpay or other compensation and on very strict terms, which included ongoing monitoring of the employee’s absences by the employee, random drug and alcohol testing, and a “last chance agreement”.

    What This Means to You

    This decision should be kept in mind for employers looking to terminate employees who have excessive absenteeism - especially if that absenteeism is innocent and/or related to medical problems such as addiction, that have the possibility of resolving themselves in the near future naturally or with the help of a treatment program.  Employers should also be mindful of the terms of their collective agreement and whether those terms allow an arbitrator to review and revise the penalty imposed.

    The decision also underlines that arbitrators continue to appreciate innocent absenteeism (even when caused by addiction) is a serious issue that can attract discipline, including dismissal.  Even where reinstatement is ordered it can be subject to strict terms, including a “last chance agreement”.