Canadian Lawyer InHouse

By Malcolm J. MacKillop and Hendrik T. Nieuwland Firing for absenteeism and lateness Employers must diligently document chronic lateness. I n our last column, we outlined the basic legal rules surrounding termination for just cause, and specifically looked at firing an employee for dishonesty. In this column we will review the law addressing another common reason for firing employees ��� absenteeism and lateness. One of the most common questions from in-house counsel is whether an employee can be fired for a single absence. The answer is ���yes,��� but typically this applies only for junior employees and where the absence is highly prejudicial to the employer. For example, in Aeichele v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Toyota), the employee was a probationary sales manager at a car dealership who was told that he would be terminated if he missed the final day of a three-day sale. The court found the instruction was reasonable as the sale was a significant event and the presence of a sales manager was ���critical.��� The employee missed the final day of the sale and was fired for just cause. However, in most cases a single instance of absenteeism does not justify termination. In Baxter v. Hallmark Ford Sales Ltd., the court found it was wrong to terminate a business manager who extended her return to work from a medical leave by only four days. Courts are also lenient with long service employees, even if the absence is caused by the employee���s misconduct outside of work. In Heynen v. Frito Lay Canada Ltd., a driver-salesman with 23 years��� service was fired after being convicted of a crime while on medical leave, which caused him to miss an additional two months of work. The court found he was wrongfully dismissed because the employer failed to provide any reason why it couldn���t continue to cover the employee���s absence until he was released from jail. Another common question is whether an employee can be fired for taking unauthorized vacations. The answer is ���yes,��� but again the employer must show an employee is chronically late and the employer clearly documents its warnings, there will be just cause. This happened in Cardenas v. Canada Dry Ltd., where the employee had consistently missed over 50 days of work every year for the past three years and consistently punched in late. There may also be just cause for fewer instances of lateness if the employee is in a senior position. In Riley v. Crown Trust Company, the employee frequently reported to work late, but it was never a concern until the employee was promoted. After the promotion, the employee had his own office that required him to walk by approximately 40 employees, which set a bad example when he arrived late. The employee was warned about his lateness on two occasions and was told After the promotion, the employee had his own office that required him to walk by approximately 40 employees, which set a bad example when he arrived late. the absence caused significant prejudice. In Bratti v. F & W Wholesale Ltd., a baker whose role was essential for the business submitted a late vacation request, which was denied because the employer was busy and short-staffed. The baker went on vacation and was fired. The court concluded the termination was justified. However, typically there will not be just cause if an employer approves a vacation, but reneges at the last minute. In Watson v. Summar Foods Ltd., the employee had the employer���s prior vacation approval and had purchased plane tickets, but five days before the vacation the employer withdrew the approval and ordered the employee to change her plans. The employee refused, went on vacation, and was fired. The court concluded that the employee was wrongfully dismissed. Lastly, many ask when an employee can be fired for chronic lateness. If ca na dia nl awy e rm a g . c o m / i n h o u s E that he was jeopardizing his employment if the lateness continued. Despite these warnings, the employee continued to show up late, and was fired for just cause. However, if the employer does not take prompt and consistent action, termination will not be justified even in the face of chronic lateness. In Cain v. Roluf ���s Ltd. (Roluf ���s Camera Centre), the employee was terminated after being late 65 times and leaving work early 36 times in the year prior to her dismissal. The court concluded that the employee was wrongfully dismissed because the employer allowed the employee���s misconduct to continue over a long period of time, and provided inadequate and inconsistent warning letters. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O���Donnell MacKillop LLP of Toronto. December 2012/January 2013 ��� 15

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