Employer distinguished between absences supported by medical documentation and those with none
“A key element of any strong attendance management policy or program is to make sure that employers are distinguishing absences for which there's a legitimate explanation,” says Joel Smith, a partner at Williams HR Law in the Toronto area.
“For an employer to dismiss somebody for a non-culpable absence, a legitimate absence, or one that would amount to something for which they're entitled to accommodation under human rights legislation, that would likely be found to be discriminatory.”
“So distinguishing between those two – and doing it in a way that’s clear, accurate, and is consistent with human rights legislation is a crucial thing for any employer to do.”
Smith’s comments follow a decision by the Canadian Human Rights Tribunal looking at the City of Ottawa’s attendance management program.
The tribunal dismissed the discrimination claim of a probationary worker who was fired for too many unexplained absences, despite the fact that the worker had medical issues that had led to other, non-culpable absences.
Medical considerations
The worker was hired as a bus operator in 2009. Her job performance during her nine-month probationary period was satisfactory, except for the fact that she had trouble with her attendance. She missed 35 days because of a hand injury she had suffered at her previous job, which required several surgeries – including one after she started working for the city – and workers’ compensation benefits.
After the last surgery, the worker requested modified duties based on the recommendations of her surgeon and physiotherapist, but such work was unavailable so the city allowed her to take unpaid time off.
The worker also developed gynecological issues that worsened when she sat for long periods of time while driving a bus and wearing her uniform’s form-fitting pants. In November 2009, she was diagnosed with polyps that would require surgery. She missed two days of work and provided documentation supporting her absence, as required by the collective agreement.
The worker missed eight days of work from January to May 2010 for which she provided medical documentation that the city accepted. However, her six-month probationary appraisal noted seven other absences for which she had not provided documentation. She was also informed that her probationary period would extended for three months due to the unpaid time off she had taken after her surgery.
Culpable absences
In June 2010, the worker’s section head met with her to discuss her attendance. The section head said that that the 35 days she had missed due to her hand injury and another nine days for which she had provided medical documentation weren’t the issue, but eight days for which she had not provided documentation was too high.
The worker was unable to explain the eight culpable absences and asked for some time to review her calendar. The meeting was resumed the next day and the worker gave varying reasons for the eight absences, including: two days to go to the dentist; two days she thought she had worked; one day she said she was on workers’ compensation leave; one day she said she was sick; and one day when she was too upset to drive. The worker didn’t mention one other absence.
At the end of the meeting, the worker’s employment was terminated. Two days later, on June 24, the city sent her a letter listing the nine days of non-culpable absences and eight days of culpable absences. The letter stated that “As a result of the above, you have been deemed unsuccessful in completing your probation” and her employment as a bus operator was terminated immediately “for failure to provide regular and reliable attendance.”
Read more: A labour relations board found that a federal employer’s inclusion of approved sick leave and family-related leave for entrance into its attendance management program was discriminatory.
Distinguishing between the culpable and non-culpable absences put the city on solid ground to mitigate the risk of discrimination, says Smith.
“[The city had] the program that they used to distinguish between the culpable and non-culpable absences and that's very valuable,” he says. “The employer ensured that they granted legitimate absences pursuant to their policy for those absences that were, to their understanding, legitimate and met the requirements for a non-culpable absence under the policy.”
“The [tribunal] saw that as evidence that the employer understood what it needed to do, and that it was not dismissing as a result of those non-culpable absences because it showed that it did the right thing when it came to the non-culpable absences.”
Human rights complaint
The union grieved the termination as wrongful and discriminatory, and the worker also filed a human rights complaint claiming discrimination based on disability.
In June 2011, the worker and the city settled the termination grievance. The city then applied to the Canadian Human Rights Tribunal to dismiss the human rights complaint on the basis that the issues had been dealt with in the grievance process, but the tribunal disagreed and allowed the complaint to continue.
For the eight culpable absences in question, the worker didn’t provide any documentation supporting them. In addition, there was no evidence of a condition that prevented her from being unable to comply with the requirement to provide such documentation, said the tribunal.
And while the worker’s gynecological condition may have caused her pain and discomfort, this did not constitute a disability within the meaning of the act – particularly since the reasons the worker gave for the eight culpable absences were unrelated to the condition. In addition, the worker never advised the city of a disability prior to the termination of her employment, the tribunal said.
Read more: An Ontario hospital’s attendance management program set reasonable thresholds, but it failed to consider disabilities and accommodation in the process.
When a termination decision is made and the employer isn’t aware of any disability, it’s important to document it at that time in case something comes up after the decision is made, says Smith.
“When an employer makes that decision – assuming, of course, it's a legitimate decision and they're not aware of any human rights reason for which they are not permitted to dismiss that employee – it's important for the employer to document that decision,” he says. “It can greatly reduce the liability for an employer to be able to show that a disability couldn't have had anything to do with a termination decision, because they didn't even know about it.”
The tribunal added that with no disability, it couldn’t be a factor in any adverse impact. This was moot, because there was no evidence of an adverse impact – the worker’s probationary period was fully evaluated and the three-month extension didn’t impact her pay or employment benefits, said the tribunal.
The tribunal determined that it was not discriminatory for the city to terminate the worker’s employment because of her inability to provide regular and reliable attendance and it dismissed her complaint.
The decision reinforces the importance of a strong attendance management policy that recognizes when absences may be related to human rights grounds while tracking other absences that may not be for legitimate reasons, says Smith.
“Having a policy or a program that is consistent with human rights requirements, and that is consistently followed, is the best way for an employer to be able to reasonably manage their workforce,” he says. “If non-culpable absences were not being clearly distinguished, it would have been a lot harder for this employer to show that they dismissed this employee because of the eight culpable absences as opposed to the 40-some-odd non-culpable absences where medical evidence was provided.”
See Cheryl Lynn Bezoine v. City of Ottawa, 2022 CHRT 9.
