Most employers have established workplace attendance policies that set out the steps an employee must take when they are reporting late or not coming in for work. This often requires the employee to report their non-attendance before they start a shift or to provide doctor’s notes when an absence is due to an illness that requires several days of being off work.

Discipline will likely be instituted if there is repeated non-compliance with attendance policies or repeated lateness without valid reasons. Employers may even try to dismiss an employee for cause.

What are some of the examples where cause for dismissal can be established by the employer for absenteeism?

When an isolated, unauthorized absence is brief, the court normally finds that the employee deserves a second chance. An absence which is intentional as opposed to one caused by misunderstanding or unintentional conduct will be regarded more seriously by the court.

The consequences of absenteeism will be examined by the court. Circumstances where cause for dismissal may be warranted include situations where the employee’s absence was deliberate after they received repeated warnings. It also includes the situation where the employer’s business was severely affected by the employee’s absence. For example, in the case of Aeichele v. Jim Pattison Industries Ltd. [1992] B.C.J. No. 1952 (S.C.), the employee disobeyed a specific instruction to attend the final day of an important sale in which the employer had committed a significant investment. The court ruled that the employer had just cause for summary dismissal.

Is lateness a ground for dismissal for cause?

To dismiss an employee for lateness, a higher threshold must be met such that it can be established that there was “willful disobedience” of the employer’s policy.

It must be shown that lateness hindered the employee’s ability to fulfill their essential job duties. Furthermore, other factors will be looked at such as whether or not the employee stayed at work later or came in earlier next time to make-up for lost time.

If the employer has tolerated lateness and early departures, it will not be allowed to dismiss employees on this ground unless it clearly states that it will forthwith require strict adherence to a stated work schedule.

Is an employee’s absenteeism due to illness cause for dismissal?

Absenteeism due to illness is not cause for dismissal unless it is so severe as to amount to frustration of the contract of employment. Even when the illness is brought on by imprudence, the resulting absence from work will not be cause for summary dismissal.

If an employee’s lateness or absenteeism is due to an illness, disability, or other “prohibited grounds” under the Ontario Human Rights Code, reasonable accommodation should be put in place. It is always advisable for the employer to consult an employment lawyer before terminating such an employee.

If you are looking for legal advice in connection to absenteeism and lateness in the workplace, Top Toronto employment lawyer, Stacey ball can advise you on your legal options. Please call us at 416-921-7997, extension 227.

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