Legal Aspects of Absenteeism

1
Legal Aspects of Absenteeism

• John F. Roil, Q.C.
• Marine Atlantic Inc.

2
1. Terms and Definitions

• Employment contract pay for work
• Fundamental Breach bargain unfulfilled
• Innocent absenteeism sick, family problems,
  etc.
• Culpable absenteeism hangover, moose season,
  etc.
• Chronic Fridays, once a month, etc
• Acute broken leg, incarceration, etc

3
2. At the point of hiring

• Best indicator past performance.
• Ask applicant questions youre allowed.
• Discrimination/disability issues careful!
• Privacy (PIPEDA) concerns.
• Consent from applicant in writing.
• Co-operation from former employer or more
  likely, not.

4
3. If absenteeism is a problem

• Culpable disciplinary process invoked.
• Usually pattern or sudden lengthy absence.
• Warnings progressive steps preferred.
• Dismissal available remedy ultimately.
• Innocent not disciplinable
• Contractual right to exhaust leaves, WCC, etc.
• Allegations of discrimination likely.
• Duty to accommodate employee, if practicable.
• Can terminate ultimately for failure to perform.

5
4. Arbitration/adjudication

• Union vs. non-union environment reinstatement
  and monetary damages.
• Doctors notes evidentiary value.
• Progressive discipline for culpable absenteeism
  only.
• Inability to perform contract for innocent
  absenteeism.
• ADR mediation, negotiation, LCC agreements,
  etc.