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Employers should ask questions, give warnings before terminating an employee

Percy began working for a sprocket manufacturer in 1981.   By 1999, he had been promoted to the position of Sprocket Manager.  He was one of 20 employees.
 
As a result of migraines, depression and hernia operations, Percy began missing a lot of time from work: 21% of his full time hours in 2004, 25% in 2005 and 42% in the first 3 months of 2006.
 
Management never asked Percy for a doctor’s note and accepted that this was innocent absenteeism. Percy was truly ill and could not work on these occasions.   The general manager would cover his duties when he was not there or Percy would leave instructions when he could. 
 
When Percy returned from a seven-week absence due to a hernia operation in the spring of 2006, he was told that as a result of his chronic absenteeism, his employment was being terminated.  He could either work for one year and then finish or take six months’ pay in lieu of notice and leave immediately.  Percy asked to be given another chance but that request was refused.  He decided to take the working notice but after a month back at the job, his depression reached the stage where he could no longer work at all.
 
By the time this matter came before a Human Rights Tribunal, some years later, he was still receiving long term disability payments from an insurer.
 
Percy claimed that the employer had failed to accommodate his disabilities.
 
The law has long been that if the characteristics of an illness are such that the proper operation of the business is harmed excessively, or if an employee with such an illness is unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate the employee, the employment relationship can be terminated. 
 
At first glance, most people would agree that a manager partially responsible for the running of a business being absent year after year for such excessive periods would cause excessive harm.
 
The employer did not lose this case because it was decided that they could have put up with these absences forever.  It lost because it did not take the procedural steps it needed to take in the accommodation process. 
 
It did not request medical information with respect to Percy’s ability to attend work on a regular basis in the future or whether there was anything they could do to help him improve his attendance.  It did not explore whether he could be accommodated through telecommuting, alternate work or a modified work schedule.
 
The point is not whether any of these things would have made a difference, the employer did not even try.  Since the employer never did any of this, the argument that it would not have made a difference anyway appropriately falls on deaf ears. Nobody can really know what would have happened if the correct process had been followed.
 
Before terminating Percy, this employer should have given him a letter outlining the history of absenteeism and warning Percy that while these absences had been accommodated in the past,  if they continued the employer would no longer be able to accommodate. It should have warned him that the absenteeism was endangering his continued employment.  That letter should have asked him to provide any information he had from himself or his doctor as to anything the employer could do to help him improve his attendance. 
 
If it turned out that there was nothing the employer could do and Percy’s attendance continued to be so sporadic, it likely could have terminated him without running afoul of human rights legislation. 
 
When employers are contemplating ending the relationship with an employee who is chronically absent as a result of illness it is not simply a matter of whether tolerating the absences is an undue hardship or excessively harms the running of the business.  It is equally important that the employer asks the questions, give the warnings and do the things that are required by human rights legislation.
 

 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.