Arbitrator upholds termination for cause in Ontario
by Stuart Rudner and Anique Dublin
In a recent decision, Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, an Ontario arbitrator upheld the termination of an employee for excessive absenteeism. In doing so, the arbitrator rejected the woman’s argument that her absenteeism should be excused because she was trying to better herself and upgrade her training.
Under the employer’s Absenteeism Policy, employees were allowed to be absent without justification or penalty for up to 10 per cent of their scheduled shifts. However, if an employee’s absenteeism rate went above the 10 per cent threshold in a one-year period between July 1 and June 30 in any year, their employment was automatically terminated.
Medically supported absences were not counted towards the absence calculations nor were any personal emergency days the employee was entitled to under the Ontario Employment Standards Act. If by January of each year an employee appeared to be approaching going over the 10 per cent absenteeism rate, they would be given a warning so that they could improve their record before the end of June.
The employee worked part-time at the employer’s Real Sports restaurant for two years. In early 2018, she received a warning letter advising her that her absenteeism rate was above 10 per cent.
After receiving the warning letter, the woman’s attendance improved. The employer also attempted to help the employee reduce her absences by treating the maximum allowable absences as personal emergency days. However, this was not enough to reduce the woman’s absenteeism rate to below 10 per cent; she finished the year with a rate of 18.46 per cent. As a result, her employment was terminated.
The union brought a grievance against the employer, alleging that the employee’s absenteeism resulted from her having to study for her Certified Professional Accountant’s degree while also working part-time. The union also argued that the strict application of the policy was unfair and should not be applied in the unique circumstances in which the woman was simply trying to “better” herself.
In its defence, the employer asserted that the policy was fair and that it gave the worker every opportunity to ensure that her absenteeism rate was brought back to an acceptable level. The employer also noted that the policy was accepted by the worker’s union.
The arbitrator agreed with the employer that the policy offered the employee built-in flexibilities that allowed her to pursue other commitments and still maintain her employment with the employer. However, the arbitrator found that due to the extent of the woman’s other commitments, she was not able to maintain the required level of attendance required for a part-time employee.
The worker also asserted that in the first half of the year, she tried to change her scheduled availability but the employer did not agree to do so. This argument was not considered by the arbitrator because the woman did not advise the employer that she was studying for school and she did not ask the employer for a leave of absence.
Regarding the policy, the arbitrator held that it was “reasonable” and it was “reasonably applied in this case.” Consequently, the arbitrator found that the termination of the worker in accordance with the policy was reasonable and justified in the circumstances.
This case highlights the importance of having a clear and reasonable absenteeism policy, which can be used to justify termination as a result of excessive absenteeism even where the absences are for a good reason. Of course, if the absences related to a disability, the duty to accommodate would have to be considered and the absolute rule may not have been applied.
