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It should be unsurprising for an employee to learn that their employment may be in jeopardy if they are chronically absent or late for work. In the time of COVID-19, some employees are facing challenges working full time because of childcare obligations and other unexpected commitments.

In certain circumstances, issues with attendance and lateness may result in the termination of the employment relationship. However, employers should proceed with caution before terminating an employee for cause due to absenteeism or lateness as it could lead to wrongful termination claims and human rights claims.

It is important for employers to consider certain factors before making the decision to terminate an employee for being absent or late for work.

In Fleming v. J.F. Goode & Sons Stationers & Office Supplies Ltd, the court listed several factors that should be considered in assessing whether an employee’s absenteeism meets the threshold for termination for cause. Based on these factors, an employer should consider the following 12 questions before deciding whether to terminate the employee:

  1. Is the employee’s misconduct significant?
  2. Did the employee fail to return promptly after a leave of absence, without advising the employer, or did the employee take time off despite a direct order not to do so?
  3. Did the employee take time off under false pretences?
  4. Will the employee’s absenteeism cause prejudice to the employer’s interest?
  5. Have there been at least two instances of absenteeism?
  6. Was the employee’s misconduct intentional?
  7. Is it the employee’s fault that they were absent?
  8. Did the employer provide warnings to the employee that their employment would be terminated if their absences continued?
  9. Does the employee have a reasonable defence for their absence, such as illness?
  10. Does the type of employment allow for the employee to set their own hours?
  11. Does the employee have a history of long service without a record of significant absenteeism that can used as a mitigating factor?
  12. Is there any evidence that the employee received permission to take a leave of absence?

If an employer can answer the first 8 questions in the affirmative and the last 4 questions in the negative, then they may be in a position to terminate an employee for cause. This means the employer is not required to give notice of termination or payment in lieu of notice to the employee. However, if the employee’s absence is justified and notice is required, then the employee may be able to advance a claim for wrongful termination. Further, if the employee’s absence was due to illness, their family status or another prohibited ground of discrimination then the employer may also have to respond to a human rights claim.

It is important for employers to consider these above questions before making the decision to terminate an employee for being absent or late for work. An employment lawyer can you help navigate these factors prior to making such decisions.

If you are an employer experiencing issues related to absenteeism or lateness, or an employee who may have been unjustly terminated, contact one of our experienced lawyers in our Employment Law Group .

Author(s)

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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