In the discussion that follows, we are concerned with occasional absences from work which an employee may attempt to justify by a telephone call indicating that they will not be reporting to work or a simple statement that he or she is not feeling well. We will not be dealing with lengthy absences which are not the product of a specific, serious illness. Lateness simple refers to reporting for work after one’s shift or daily schedule of hours has begun.
Many employers have in place attendance policies which set out the procedure an employee must follow when not coming in for work or reporting late. This will often require that the employee report his non-attendance before the commencement of his shift, and provide doctor’s notes when absences are illness-related and extend beyond a certain number of days. Non-compliance with an employer’s attendance policy will likely result in discipline and if the conduct continues, be relied upon by the employer as cause for dismissal.
Even where there is no formal attendance policy, persistent lateness without a valid reason will generally be regarded as a serious breach of the employee’s obligation to the Employer. Where the employee cannot offer a valid explanation for persistent lateness, warnings have been issued and the conduct persists, the employer will likely be able to terminate for cause.
An employer will not be able to establish cause for dismissal where an employee is unable to attend work due to illness. In such circumstances, an employer will face the difficulty of securing reliable medical information to determine whether the employee is indeed sick. As one writer has indicated:
“It would be unreasonable to attempt to require that employees consult a doctor for even the slightest ailment. In the absence of some medical evidence, it will be exceedingly difficult for an employer to convince a court that the employee did not, in fact, suffer from the illness claimed. In the typical case, where the employee claims to have remained at home, as a result of some illness, it is virtually impossible to contradict the employee.”
An employee may however be obliged to provide confirmation of illness from his doctor where the absence is of lengthy duration or even in the case of a short absence, where the employee has been absent on a significant number of occasions.
Where the absence is not illness-related, the Court will look at a variety of factors in deciding whether just cause exists. In the Ontario case of Heynen v. Frito-Lay Canada Ltd., the Court determined that an absence from work due in part to a jail sentence did not constitute cause for termination. In reaching its decision, the Court referred to the following excerpt from the English case of Hare v. Murphy Brothers Ltd.:
“In a case of contract of employment, you must look at the length of time he had been employed, the position which he held, and, of course, most important of all, the length of time he is likely to be away from his work and unable to perform it – and the importance of getting someone else to do his job meanwhile.”
In Heynen, the plaintiff was an employee of 23 years with an excellent employment record. He had never been reprimanded or disciplined in any way. He was terminated only a month before he was to return to work, and the employer had previously been able to find a temporary replacement. Under the circumstances, the Court concluded that the employer did not have cause to terminate.
That an employer’s conduct in terminating an employee, in the above circumstances, may give rise to a claim for wrongful dismissal, will provide some consolation to an employee who has been fired for non-attendance or absenteeism. Where the absence from work is illness-related, the employee may also have grounds for bringing a complaint under the Ontario Human Rights Code based upon disability. An individual, who has been terminated due to absenteeism or persistent lateness, is therefore well advised to meet with a lawyer to determine what avenues of legal redress are open to him.