Can a person be fired for being late?
Can they be fired for skipping a day without telling their boss?
What if they were late, or did not show up, because they were working at another job? or because they had been consuming alcohol or cannabis?
These are the sorts of questions dealt with in mediation and arbitration hearings, or in workplace investigations, and the answers are not always straightforward. The following example and overview illustrate the potential complexity of absenteeism in labour and employment contexts.
Overview of Legal Factors considered in Arbitration, Mediation and Workplace Investigation of Absenteeism
A. Frustration of the Employment Contract
When used in a legal context, the term “frustration” does not refer to feelings of irritation or annoyance. Instead, the term describes one way that a contract can come to an end. When an employment contract is “frustrated” it means that something (which was unpredicted by the parties when the contract was created) has happened such that continuing the contract is impossible and permits termination of employment.
Note that the general law regarding termination is different for unionized versus non-unionized employees. For unionized workers, arbitrators apply the test set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518,  1 Can. L.R.B.R. in order to determine whether dismissal is justified or whether a different outcome should occur (including reinstatement of the worker to their job with or without a lesser sanction, or other compensation). For non-unionized employees, the Supreme Court decision in McKinley v. BC Tel,  2 SCR 161, 2001 SCC 38 (CanLII) sets out the guiding principles in determining whether employee conduct/misconduct justifies dismissal.
***For a detailed review of the respective test and principles, please refer to the Discipline and Termination section under the Areas of Focus tab of this website.***
If a person becomes ill in a way that makes them absent from work it can – under certain circumstances – “frustrate” their employment contract. This scenario is also sometimes referred to as non-culpable absenteeism and, generally speaking, can justify termination of employment since the exchange of work for pay has been recognized by courts as fundamental to employment contracts. However, since employers have a duty to accommodate employees, which includes employees disabled by illness, careful consideration is given to the impact of an illness/disability on the employment relationship. The Court in Lafrenière v. Leduc, 1990 CanLII 6832 (ON SC) explains as follows:
“Whether a contract of employment has been frustrated by an employee’s illness or incapacity depends on whether or not the illness or incapacity was of such a nature or likely to continue for such a period of time that either the employee would never be able to perform the duties contemplated by the original employment contract or that it would be unreasonable for the employee to wait any longer for the employee to recover. To determine if a contract has been frustrated, regard must be had to the relationship of the term of the incapacity or absence from work to the duration of the contract, and to the nature of the services to be performed.”
B. Substance Use Disorders as Disabilities
There are also circumstances when an illness causes absences that may not justify termination of employment. For example, courts have stated that if an illness/disability appears treatable then efforts at accommodation are required. Additionally, substance dependencies – including addiction to alcohol or drugs – have been recognized as disabilities and therefore are protected from being used as reasons to terminate an employee unless the person cannot be accommodated without undue hardship. (Stewart v. Elk Valley Coal Corp. 2017 SCC 30 (CanLII)).
As such, careful consideration of the nature of absences is involved in determining whether a contract has been frustrated allowing termination of the employment contract.
C. Employer Condonation
Another way that absences and lateness may not permit termination is where the behaviour has been allowed in the past. It is a longstanding principle at law that dismissal is precluded in situations where behaviour that would otherwise justify dismissal has been condoned. In other words, a person cannot be fired for being late if they have not been reprimanded for having been late before.
Case in Point: An Arbitration involving Absences and Cannabis Use
The recent legalization of cannabis in Canada has prompted an increase in consideration of substance use in relation to work. But, even prior to legalization, the relationship between the two had been considered by arbitrators and mediators.
The 2017 arbitration decision, Re: Kelfor Industries Ltd. and USW, Local 2009 (Medical Leave and Termination) (2017 CarswellBC 3594, 134 C.L.A.S. 4), involved a worker (represented by his union) who had a history of unexplained absences and off-duty substance use including daily cannabis use. The worker was fired after failing to undergo an independent medical examination concerning his fitness for work (as requested by his employer). Having dealt with the issue of employee rights to privacy, and the employees’ statutory duty to ensure an ability to work without drug/alcohol impairment, the arbitrator dismissed the worker’s grievance. The arbitrator stated that the employer “had no ability to determine if the (worker) was fit for work, with or without limitations, for the foreseeable future. Absent such information the termination of the [worker] was justified. His dismissal was therefore not disciplinary but rather based on non-culpable grounds; that is, the fact that the [worker] elected to not provide medical evidence that he was fit to return to work safely in the foreseeable future.”
Unauthorized absences, and/or frequent lateness, from work can be grounds for dismissal. However, many factors will affect the results of an arbitration, mediation, or workplace investigation. The existence of a formal/written employment contract or applicability of a collective bargaining agreement (for unionized employees), the terms of that contract or agreement, whether the contract has been “frustrated”, the way that lateness/absence(s) have been handled in the past, and whether the lateness/absence is due to an illness: these are all factors that are relevant to a determination of whether absences/lateness warrant that a person be fired.
Ultimately, determining whether a person can be dismissed/terminated from employment because of their lateness or absence(s) requires consideration on a case-by-case basis. If you require assistance dealing with lateness and/or absenteeism at your workplace, please contact Neil Hain.