A termination for innocent absenteeism may be set aside where the employer fails to consider accommodation at the time of termination
In Tolko Industries Ltd., 2012 CanLII 90332 (AB GAA) (Ponak), the employee was terminated for innocent absenteeism after having received many written warnings that his attendance must improve. In his seven years of employment, his absenteeism rate ranged from 17.9 % in his first year of employment and from 31.7 to 58.1 % in the next five years. His absenteeism rate in his final year of employment was 13.4 %. In all but one of these years, the plant average absenteeism rate did not exceed 5.1 %.
The absenteeism rates were calculated in percentages using hours absent as the numerator and the total hours available as the denominator. Plant shutdowns and closures were excluded from the available hours and vacation time was not counted as an absence. The absences were broken into several categories, including regular sick leave, short term disability, medical layoff, unpaid absences for personal reasons and workers’ compensation absences. The employer also recorded dates when the employee was being accommodated through a gradual return to work or through the assignment of alternate duties, dates where an accommodation was being sought and the employee was not at work, vacation times and periods when the operation was shut down.
The employee had undergone seven hernia-related surgeries during a 14 year period. His long-standing hernia problems were finally addressed when he returned to work following the last of these surgeries. Although his attendance improved, the employer considered the improvement to be insufficient, and the employee was terminated for innocent absenteeism 18 months later.
The employer relied on the established test for non-culpable terminations as set out in Shelter Regent Industries (2007), 124 L.A.C. (4th) 129 (Ponak):
1) Was the absenteeism excessive; 2) was the employee warned that his or her absence was excessive and failure to improve could result in discharge; 3) was there a positive prognosis for regular future attendance at the time of dismissal; and 4) if the absenteeism was caused by an illness or disability, did the employer attempt to accommodate the employee to the point of undue hardship prior to the dismissal.
These tests were said to have been adopted in AltaLink Ltd., (2012) AGAA No. 16 (Sims) and The Government of the Province of Alberta, (2008) AGAA No. 35 (Sims).
The arbitrator accepted that
the proper time to make the assessment of the likelihood of regular future attendance is at the time of dismissal, taking into account an employee’s entire work history (Hydro-Quebec and McGill University) as well as post-discharge evidence that sheds light on the reasonableness of the decision at the time it was made.
He also stated that
I accept the Employer’s submissions that, having established excessive absenteeism, the burden may shift to the Union to rebut the presumption that the excessive absenteeism would have persisted. (Fort McMurray; AltaLink; Coast Mountain). I adopt the analysis of Arbitrator Sims in AltaLiink where he reasoned (paragraphs 58, 59, & 62):
58 The appropriateness of relying upon an inference that past experience is the best guide to the future is more obvious where the past absences are intermittent and unexplained. It is not so obvious where the grievor is away due to a long-term disability, whether compensable, insured or not. This is for two reasons.
59 First, the reason for the absence is more likely to be explained, whereas [with] intermittent absences, this is less so. Second, some reasons for a medical absence involve illnesses that are chronic, other illnesses that are predictably finite. The prognosis will vary with the nature of the incapacitating illness and its progress over time. For a known disabling condition that in the ordinary course can be treated, presuming continued absence from past absences may be far less appropriate than where the diagnosis is unclear and the course of treatment unpredictable.
62. The cases on the “prognosis for future attendance” aspect of the test, when dismissal occurs in a case like this, rests on the employer, but often the employer is entitled to rely upon a reasonable inference based on past experience. This is not a fixed presumption; rather it is a matter of convincing the board that such an inference, based on all the circumstances, is appropriate.. An arbitration board, in deciding that question, must assess the legitimacy of the employer drawing such an inference at the time of its decision to terminate. In our view, the reasonableness of drawing such an inference cannot be divorced from the type of illness, the medical information known of the condition, its anticipated length of treatment, certainty of diagnosis and so on.
Arbitrator Ponak stated that
In the current case, the Grievor suffered both from an identifiable, long term condition related to his hernia, and a number of other unrelated illnesses, including migraines, depression, chronic back and neck pain, and gastrointestinal problems, that caused intermittent absences. His absenteeism was substantial before and after his last hernia surgery … In these circumstances, even though the hernia condition has now apparently been resolved (leaving some permanent restrictions), I am satisfied that the burden properly shifts to the Grievor to demonstrate the likelihood of future regular attendance given that his absences arise from various medical issues that go beyond his hernia surgeries.
… If the hernia condition was the main reason for the Grievor’s poor attendance, its resolution, albeit with restrictions, should have resulted in a significant attendance improvement following the grievor’s return to work [following his final surgery], rebutting the presumption that the Grievor’s past poor attendance was unlikely to change. If following the surgery the Grievor’s attendance improved to an acceptable level, then it would … be reasonable to conclude that the medical treatment of his hernia had resulted in a positive change in [the] grievor’s prospects for regular attendance, notwithstanding an extremely poor attendance record pre-surgery. On the other hand, a failure to achieve acceptable attendance after surgery would lead to the opposite conclusion – that there was little likelihood of regular future attendance.
… the Grievor’s post-[surgical} overall attendance level, covering almost a year and a half, shows improvement and some progress compared to the [prior] period but I am unable to conclude that it rises to the level of demonstrating that the Grievor is capable of regular attendance. … there is simply no sustained period of progress post-[surgical] 2008 that instills confidence that the Grievor is capable of regular attendance. At best there is some promise of better attendance, but the pattern lacks a consistent trajectory in a positive direction. There is neither continued improvement nor stability over the 18 months at what might be considered an acceptable, or close to an acceptable level of attendance.
The arbitrator stated that the physician’s medical evidence did not shake his conclusion that “the Grievor has yet to demonstrate a capacity for sustainable attendance at an acceptable level.” He attached little weight to the physician’s view that the Grievor should be able to attend at work on a reasonable basis; for at the time of the physician’s assessment, the Grievor had not been working for a year and his health may have benefited as a result. More importantly, the physician did not have access to the Grievor’s attendance records and after considering those during his evidence, he was less confident in his prediction that the Grievor would be able to attend regularly if he returned to work.
The arbitrator concluded that “the post-[surgical] attendance record and the medical evidence are insufficient to show that the Grievor was capable of future regular attendance at the date of his dismissal.”
On the question of accommodation, the arbitrator stated:
This case ultimately turns on the duty to accommodate and whether the Employer had fully discharged its obligations at the time of dismissal. I have struggled with this question because the competing positions of the parties are defensible in law and reasonable based on the evidence. In particular, it is unclear from the evidence that even with a different accommodation the Grievor would have been able to attend regularly after his return to work [following his final surgery]. Was the Grievor’s continuing inability to sustain regular attendance due to a misalignment between his physical (and perhaps psychological) defecits and the work he was being asked to perform? Or, does the cumulative impact of the grievor’s various illnesses mean that no matter what the accommodation, he is simply incapable of sustaining regular attendance?
These are difficult questions to answer. In a close decision, and keeping in mind that the employer ultimately bears the onus in dismissal cases, I am persuaded that an additional attempt at accommodating the Grievor should be undertaken and that the Grievor should be reinstated with conditions. The only way to answer the question of whether a different accommodation can result in regular attendance is to try it, keeping in mind that employees are entitled to accommodation “to the point of undue hardship” and that once undue hardship is reached an employer’s responsibilities will be fulfilled.
In finding that the Employer could have done more to accommodate the employee short of undue hardship, the arbitrator stated that the functional assessment that was relied on at the time of termination was more than three years old. A new report would have been an important starting point in any assessment of current and future accommodation efforts. With an updated functional analysis, the parties could seriously have examined modifying existing positions. Unlike the situation in Hydro-Quebec and McGill University, the employee here was working at the time of termination and had provided glimpses of better future attendance. “When an employee shows some capacity for better attendance, it increases the parties’ obligations to search for an accommodation that can turn the potential of regular attendance into a sustainable reality.”
The employee was reinstated with a direction that the parties resolve the terms of reinstatement themselves, failing which the arbitrator would do so.