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 and employers may try to dismiss an employee for cause. Even if a formal policy is not in place, repeated lateness without valid reasons is a serious breach of the employee’s duties to their employer. Contact Toronto employment lawyer, Stacey Ball to set up a consultation.
Circumstances where a just cause dismissal may be warranted include situations where the employee was away during an important time, where an absence was deliberate after they received warnings and where an employer was potentially prejudiced by the employee’s absence.
To dismiss an employee for lateness, a higher threshold must be met such that it can be established that there was “wilful disobedience” of the employer’s policy. It must be shown that lateness hindered the employee’s ability to fulfil their essential job duties. Furthermore, other factors will be looked at such as whether or not the late employee stayed at work later or came in earlier to make-up for lost time. The harm caused and whether previous warnings have been given are other factors the court will consider to see if the employer condoned such behaviour by failing to issue warnings.
If an employer wants to terminate an employee for cause due to lateness, they must ensure that human rights are not being violated. Just cause for dismissal where an employee cannot attend work due to an illness is not warranted. If for example 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. Where an absence is not due to illness, the Court will look at several factors to determine if there is just cause.
In the case of Heynen v. Frito-Lay Canada Ltd., 1999 ONCA 1386, the Court held that an absence due to a jail sentence did not warrant just cause dismissal. The Court took a holistic analysis. The plaintiff was an employee for 23 years, had an excellent performance record and was never disciplined. His termination came one month before the plaintiff was to return to work and when the position had been filled by a temporary employee. The court determined he was wrongfully terminated especially since the defendant failed to give reasons for why it did not continue to fill the plaintiffs position with a temporary worker.
If your organization is seeking to terminate employees for lateness and excessive absenteeism, contact Toronto employment lawyer, Stacey Ball to set up a consultation. If you have been terminated due to lateness or absenteeism, our office can help you challenge your employer’s allegations. Call our office at 416-921-7997 extension 227.