Where an employee has a pattern of innocent absenteeism, an employer is open to claims of discrimination on the basis of disability, or perceived disability, if a decision is made to terminate the employee for regularly missing work. A recent ruling in Alberta highlighted the importance of an employee’s credibility in proving a complaint on the grounds of discrimination.
The Alberta Court of Queen’s Bench recently overturned a decision of the Alberta Human Rights Tribunal (the “Tribunal”) which awarded a former employee of Syncrude Canada Ltd. $10,000 in general damages and $33,901 in lost wages.
Syncrude Canada Ltd. v. Saunders, 2015 ABQB 237 is the appeal decision from the Tribunal’s finding that a newly-hired Processor Operator had been discriminated against on the basis of disability, or perceived disability, following his termination without cause. The employee had been working for Syncrude in a highly safety-sensitive position out of Fort McMurray. Within his eleven month period of employment, the claimant had several instances of absenteeism some of which the Court noted suspiciously coincided with his approved holiday time. Syncrude made the decision to terminate the employee without cause based on his poor performance and innocent absenteeism. The employee was successful before the Tribunal in arguing that he had suffered prima facie discrimination based on disability or perceived disability.
The Court overturned the Tribunal’s decision largely on the issue of the employee’s lack of credibility with respect to his explanation for his absenteeism and his history of drug and alcohol use which was discussed in his medical records. His absenteeism often coincided before and after his approved time off and his periods of absenteeism where characterized as transient illnesses, including a hand broken in a bar fight, or misuse of illness leave to extend his approved days off. The Court was satisfied that the employee did not have a disability and that he was not terminated on the basis of a perceived disability by Syncrude. His poor attendance could not be attributed to a disability for which Syncrude had failed to accommodate.
What Does This Mean to You?
Where an employee has poor attendance issues, the employer must take care to evaluate the cause of the absenteeism and accommodate the employee if they have a disability. Before the decision is made to terminate an employee with significant absenteeism, the employer should investigate the reason for sick leave, including having the employee meet with Human Resource or a Wellness Advisor, to determine whether the employee has a disability which the employer must reasonably accommodate. Evidence surrounding any explanation for absences which are not credible should be gathered to support the grounds for termination.
The Court in Syncrude Canada Ltd. v. Saunders noted that the employer had been clear in making its policies around absenteeism clear, offering a well-established program to assist with illness and injury and providing the employee clear expectations about unexcused absences from work or training.
The full text of the decision can be read here.
This post is intended to provide general information concerning developments in the law and is not intended to provide legal advice in respect of any particular situation.