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August 8, 2012

Firing for Absenteeism and Lateness

Authors Malcolm MacKillop and Hendrik Nieuwland

In our August Snapshot article, we outlined the basic legal rules surrounding termination for just cause, and specifically looked at the law regarding one of the most common reasons for firing an employee – dishonesty. In this article we will review the law addressing another common reason for firing employees – absenteeism and lateness.

In general, absenteeism and lateness justify dismissal when the conduct is found to have amounted to “willful disobedience” of an employer’s order or policy. The court will also consider other factors when deciding if there is just cause, including:

• the seriousness of the absenteeism/lateness, taking into account the employer’s work environment and the nature of employment;
• whether the employee has been warned in the past for similar conduct;
• whether the employee occupies a senior position or has considerable length of service;
• whether the employee’s conduct prejudiced the employer’s business;
• whether the employer has tolerated similar conduct in the past;
• whether the reason for the absence was reasonable and therefore excusable;
• whether the employee was dishonest about the reason for their absence; and
• whether the employee’s absence was intentional.

One of the most common questions managers ask is whether an employee can be fired for a single absence. The answer is “yes”, but typically this applies only for junior employees and where the absence is highly prejudicial to the employer. For example, in Aeichele v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Toyota), [1992] B.C.J. No. 1952 (S.C.), the employee was a probationary sales manager at a car dealership, who was explicitly told that he would be terminated if he missed the final day of a three day sale. The court found that the instruction was reasonable in the circumstances as the sale was a significant event and the presence of a sales manager was “critical”. The employee missed the final day of the sale and was fired for just cause.

However, in most cases a single instance of absenteeism does not justify termination. In Baxter v. Hallmark Ford Sales Ltd.,[1995] B.C.J. No. 2776 (S.C.), an experienced business manager who was fired after extending her return to work from a medical absence by only four days was wrongfully dismissed. Courts are also lenient with long service employees even if the absence is caused by the employee’s misconduct outside of work. In Heynen v. Frito Lay Canada Ltd.,[1999] O.J. No. 3560 (C.A.),a driver-salesman with 23 years’ of unblemished service was fired after being convicted of a criminal offence while on medical leave which caused him to miss an additional two (2) months of work. The court found he was wrongfully dismissed because the employer failed to provide any reason why it couldn’t continue to cover the employee’s absence until he was released from jail.

Another common question from managers is whether an employee can be fired for taking unauthorized vacations. The answer is “yes”, but again the employer must show the absence caused significant prejudice. In Bratti v. F & W Wholesale Ltd.,[1989] B.C.J. No. 1440 (B.C. Co.Ct.),a baker whose role was essential for the employer’s business submitted a late vacation request, which request was denied because the employer was very busy and was short-staffed. The employer made it clear that if the baker took the vacation he would not have a job when he came back. The baker went on vacation and was fired. The court concluded the termination was justified. Similarly, in Gonzalo v. Moores The Suit People Inc. (c.o.b. Moores Clothing for Men),[2006] S.J. No. 381 (Q.B.),a tailor who took an unauthorized vacation in December (the employer’s busiest time of year) contrary to the vacation blackout policy was fired for just cause.

However, there typically will not be just cause if an employer approves a vacation, but reneges at the last minute, and the employee nonetheless takes her vacation. This happened in Watson v. Summar Foods Ltd.,[2006] O.J. No. 4541(S.C.J.). In that case, the employee had the employer’s prior approval to be out of the country and had purchased plane tickets, but five days before the vacation the employer withdrew the approval and without giving any reason ordered the employee to change her vacation plans. The employee refused, went on vacation, and was fired. The court concluded that the employee was wrongfully dismissed.

Lastly, many managers ask when an employee can be fired for chronic lateness. If an employee is chronically late for a long period of time and the employer clearly documents its warnings, there will be just cause. This happened in Cardenas v. Canada Dry Ltd., [1985] O.J. No. 1724 (Dist. Ct.), where the employee had consistently missed over 50 days of work every year for the past three years and consistently punched-in late. There may also be just cause for fewer instances of lateness if the employee is in a senior position. In Riley v. Crown Trust Company, [1977] A.J. No. 606 (S.C. (T.D.)), the employee frequently reported to work late, but it was never a real concern of the employer’s until he was promoted. After the promotion, the employee had his own office that forced him to walk by approximately 40 employees when he arrived late, which set a bad example. The employee was warned about his lateness on two occasions and was told he was jeopardizing his employment if the lateness continued. Despite these warnings, the employee continued to show up late with the same frequency, and was fired. The court found that the termination was justified.

However, if the employer does not take prompt and consistent action, termination will not be justified even in the face of chronic lateness. In Cain v. Roluf's Ltd. (Roluf's Camera Centre),[1998] O.J. No. 661 (Gen. Div.), the employee was terminated after being late 65 times and leaving work early 36 times in the year prior to her dismissal. The court concluded that the employee was wrongfully dismissed because the employer allowed the employee’s misconduct to continue and deteriorate over a long period of time, and provided inadequate and inconsistent warning letters.

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