Innocent Absenteeism: A Reasonable End to Accommodation

Innocent absenteeism is absenteeism which results from the illness or disability of an employee. “Frustration” is the legal concept which allows employers to terminate employees when innocent absenteeism becomes excessive and there is no reasonable prognosis for improvement in the foreseeable future. However, determining when innocent absenteeism reaches the point of frustration is far from straight-forward.

Over the past three decades, the concept of frustration has been complicated by the addition of human rights obligations which prevent an employer from discriminating against employees based on disability and require accommodation to the point of undue hardship.

As a result of these human rights obligations, employers are expected to accept legitimate employee disabilities, and modify duties and expectations with a view to returning employees back to productive work. Only where excessive absences (which can be intermittent or an extended period of complete absence) and uncertain or long prognoses exist may an employer consider the employment relationship to be extinguished as a result of frustration of the employment contract.

Applying principles developed by the Supreme Court of Canada, earlier this year Arbitrator Dorsey issued his award in Teamsters Local, Union No. 213 v Sun-Rype Products Ltd., addressing an employer’s ability to rely on innocent absenteeism when terminating. Although the principles are not new, this decision provides a useful guide to employers on how to manage employee absences, the responsibility to facilitate a return to productive work, and when it is appropriate to consider an employment relationship at an end.

Sun-Rype, over the course of a lengthy absence of more than two years, assisted an employee in seeking rehabilitation, obtaining benefits, and developing return to work programs. Ultimately, the employee was unsuccessful in returning to lighter work despite two gradual return to work plans, and no additional options were available for accommodation. The employee’s prognosis for returning to productive work was uncertain and the employer dismissed the employee for innocent absenteeism.

Although the union claimed that Sun-Rype had failed to accommodate the employee, the arbitrator found that the employer had fulfilled its responsibilities under human rights legislation and was entitled to dismiss the employee due to its legitimate, but ultimately unsuccessful attempts to return the employee to productive work. The arbitrator confirmed that where an employer is able to demonstrate that an employee cannot return to productive work in the foreseeable future, further accommodation would be an undue hardship and the employer may consider the employment relationship to be at an end. Importantly, the arbitrator explained that an employee must meet a basic level of fitness for the available work (not necessarily the employee’s pre-disability work), and that a failure to obtain, or have a foreseeable ability to return to, that level of fitness relieves an employer of its obligations to the employee.

This decision serves as a good reminder of the incorrectness of the belief held by many that an employee suffering a disability cannot be terminated. To learn more about managing innocent absenteeism and terminating employees based on frustration of contract, we invite you to attend our upcoming webinar “Dealing with Performance and Absenteeism Issues”.