In a recent decision, Ontario arbitrator Joseph D. Carrier held that an employer did not have to accommodate an employee after nearly a decade of innocent absenteeism with no end in sight.
This is a valuable decision for employers because it demonstrates the limits of the “duty to accommodate”, as well as the importance of context when analyzing accommodation efforts.
In Metro Ontario Inc v Unifor, Local 414, Metro Ontario Inc (or “the Employer”) terminated an employee (or “the Grievor”) after years of innocent absenteeism with no signs of improvement moving forward. The Grievor was a porter/cleaner at a grocery distribution center that provided products to various Metro grocery stores throughout the province. The distribution center delivered products to grocery stores in accordance with specific timelines, meaning that the Employer required regular attendance from employees to ensure that all deadlines were met.
From the time the Grievor began his employment in 2012 until he was terminated in March of 2020, he missed between 30 and 77 days a year. Throughout his tenure with the Employer, the Grievor had been absent for a number of reasons, including surgeries, kidney stones, injuries, and respiratory problems. However, the most notable reason for the Grievor’s absences related to his chronic depression.
The Grievor’s depression had been well-documented through different medical notes provided to the Employer. For example, the Grievor’s personal physician wrote a note in 2016 confirming that he suffered from chronic depression, was on medication, and was receiving counselling. Furthermore, the note provided that the Grievor would require periodic time off work when feeling particularly stressed.
As well, a medical assessment from March of 2020 served to confirm the Grievor’s past psychological issues, including recurrent symptoms of depression. The assessment also provided no indication that the Grievor’s issues would be under control in the reasonably foreseeable future.
When the Grievor was eventually let go for excessive innocent absenteeism linked to issues that did not appear to be improving, the union filed a grievance alleging unjust termination. The union argued that the Grievor’s inability to attend work was caused by a medical condition, and that the Employer had failed to accommodate his disability to the point of undue hardship.
The Interplay between Innocent Absenteeism and the Duty to Accommodate
An employer who wishes to terminate an employee on the grounds of innocent absenteeism must establish that:
- The employee’s past absences have been excessive; and
- There is no reason to believe that the employee will be able to regularly and consistently attend work in the foreseeable future.
Arbitrators have held that employers must satisfy both requirements because it would be unfair if they could simply terminate an employee for reasons outside of their control (such as a mental or physical condition) when there is evidence that the disorder has been resolved, or would be resolved in the foreseeable future.
On the other hand, if the employer can establish that the employee is unable to fulfill the terms of their employment because of a condition, and that this state of affairs will continue into the future, an arbitrator is more likely to find that the employee was simply unable to uphold their end of the employment contract.
Employers are bound by the duty to accommodate employees experiencing disability (among other grounds protected under Ontario’s Human Rights Code) up to the point of undue hardship. While the duty to accommodate is designed to ensure that employees who can work in some capacity are given the opportunity to do so, the duty is not intended to alter the essence of the employment contract. In fact, arbitrators have held that requiring employers to accommodate employees by accepting excessive absenteeism would indeed be forcing them to accept an arrangement that is contrary to their original employment agreement. As will become clear, this is not the purpose of the duty to accommodate.
The Employer was Justified in Terminating the Employee for Excessive Innocent Absenteeism
Arbitrator Carrier accepted that the Grievor’s attendance record demonstrated an excessive number of absences that began in his first year of employment with the Employer and continued until he was dismissed. When combined with the medical records documenting the Grievor’s recurring battles with depression, Arbitrator Carrier concluded that there was no reason to believe that his attendance would improve in the future.
Arbitrator Carrier also found that the Employer’s past attempts at accommodating the Grievor’s absenteeism by allowing him to work in different roles had not worked, as he still could not attend work on a regular and consistent basis. Furthermore, requiring the Employer to continue accommodating the employee’s excessive absenteeism would strike at the essence of the employment contract. That contract was premised upon the Employer exchanging wages and benefits for the Grievor’s attendance and performance at work. As should be clear, the Grievor’s excessive innocent absenteeism demonstrated that he was unable to fulfill those obligations when his Employer counted on him.
Based upon these considerations, the union’s grievance was dismissed.
The Bottom Line
This is an important decision for employers, as it illustrates that the specific needs of each workplace will play an important role in determining what is a “reasonable” accommodation. In the case at hand, the Employer required employee attendance at its grocery distribution center in order to ensure that its stores would receive products in accordance with specific timelines. Given that the Grievor’s unfortunate circumstances often resulted in him being absent from work, the Employer did not have many options when it came to accommodating him, and the arbitrator understood this. However, an arbitrator faced with a similar set of facts in an entirely different workplace setting may very well have reached a different conclusion.
Accordingly, employers are strongly urged to seek expert legal advice when making any decisions regarding their duty to accommodate employees. To learn about how your rights may be impacted by such decisions, please do not hesitate to contact us.