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This issue was addressed in the recent arbitral decision of Humber River Hospital v. Teamsters, 2014 CanLII 50008 (ON LA), where the grievor was employed in the Dietary Department of the hospital and had been for fifteen years. The grievor had a persistent pattern of frequent and unexpected short-term absences. The grievor attributed the majority of her absences to back pain or attendance for medical appointments to deal with back pain.

The Hospital measured attendance in two ways, the number of new sick incidents involving an employee and the total number of sick days taken by the employee. Over a 42 month period, this grievor had 65 new sick incidents, or 1.5 per month on average (compared to a departmental average of 0.4 and a hospital average of 0.25 sick incidents) and she was absent for a total of 127 sick days, or 3 per month on average (compared to the departmental average of 1.4 and the hospital average of 0.9 sick days). Thus the grievor was absent more than three times as often, and took more than twice the number of sick days as the average among a large group of employees over a lengthy period.

The issues to be decided in this case were:

(1) Whether the grievor’s absenteeism was excessive;
(2) Whether she was incapable of regular attendance in future; and
(3) And if so, did the employer fulfill its duty to accommodate her disability?

The union, the employer and even the grievor agreed that the absences were excessive, but were related to bona fide health reasons. On the issue of whether the grievor was incapable of regular attendance in the future, the arbitrator noted that the onus of establishing that the grievor is incapable of regular attendance in the future falls on the employer. In discharging that onus, an employer is entitled to rely on the employee’s past record unless the reasons for poor attendance in the past are no longer operative (of significant importance in this case). Once the hospital has shown that it is a reasonable inference from the past record that the employee’s excessive absenteeism will continue, the onus shifts to the employee to show otherwise.

The employer relied on two last attempts or ‘challenges’ that it had given the grievor to improve her attendance. The first indicates that it is a ‘last chance,’ and calls for perfect attendance for the next six months, warning ‘that should you be absent within this six month period, it may lead to your immediate termination.’ It ended when the grievor called in sick two months later. The second challenge provided her with one more final opportunity to improve her attendance, requiring a maximum of two incidents and six days of absence within the first six months. It also set targets for the two next succeeding twelve month periods, ‘assuming you remain employed.’ The grievor called in sick on three incidents within the first six months, exceeding the sick incidents threshold, although not the threshold for total sick days. The union argued that some of these incidents related to a hernia condition which was addressed post-termination with surgery and therefore would not influence the likelihood of her back condition impacting her likelihood of regular attendance in the future.

This hernia condition was relied on by the arbitrator in finding that the employer acted prematurely and without sufficient inquiry in terminating the grievor. He notes that if it had not been for her hernias, the grievor may have met the first and second challenge. The hospital argued that her surgery to address her hernia was not until post-termination, but the arbitrator found that the last medical note submitted states on its face that it was for abdominal surgery and therefore the hospital should have asked the grievor for more medical information relevant to her most recent absences and their impact on her prognosis. Therefore the conclusion by the employer that the grievor was incapable of regular attendance in future, was premature and based on insufficient inquiry.

The last issue as to whether sufficient accommodation was provided was not addressed. The arbitrator did warn the grievor that should she not follow the recommendations of her health care providers to improve her condition, she may be placing her employment security at risk.

The grievor was reinstated and subject to her last ‘challenge’.

What can employers take from this decision? Terminating for absenteeism when there is a medical condition at play is not an easy task. However, employers must ensure that they have made all inquiries and obtained all necessary medical documentation before concluding that there is not a reasonable prospect of regular attendance in the future. Leaving any stone unturned could be fatal to an employer’s position.

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