Written by Daniel Standing LL.B., Editor, First Reference Inc.
In Teamsters Local Union 847 v Maple Leaf Sports and Entertainment, 2019 CanLII 95328 (ON LA), a labour arbitrator upheld the reasonable application of a workplace absenteeism policy. Although the employee’s excessive absenteeism was because the employee tried to better herself and upgrade her training, the employer was still justified in dismissing her.
Key facts and decision
In a remarkably succinct decision, arbitrator Norm Jessin considered the grievance of Mariah Squire, a part-time employee at the employer’s Real Sports restaurant. At the time of her dismissal, she had two years’ seniority. The employer’s absenteeism policy allowed for absences from the workplace without any justification for up to 10 percent of the employee’s shifts without penalty. However, absenteeism above the 10 percent threshold in any one-year period between July 1 and June 30 in any year resulted in the employee’s deemed termination. Exclusions from the application of the policy included any medically-supported absences and any personal emergency days the employee was entitled to under the Ontario Employment Standards Act. Employees who approach the 10 percent threshold are issued a warning to bring their absenteeism below the acceptable level before the end of the next June. The union had not challenged the absenteeism policy, as it mirrored what the parties agreed to in other collective agreements.
At the time of her termination, the grievor’s absenteeism rate was 18.46 percent. Rather than being due to illness or a personal emergency, it resulted from her half-year of studies in an accounting program while also working full time. When she received the warning letter, she was able to improve her attendance but not below the required 10 percent threshold. Although she had asked the employer to alter her work schedule, the employer declined to do so. In any event, the grievor did not advise the employer that she was studying for school and she did not ask for a leave of absence.
The union argued that a strict application of the policy was unfair as the grievor was simply trying to “better” herself. The employer argued that the policy was fair and that it gave the grievor every opportunity to ensure that her absenteeism level was brought to an acceptable level. It also pointed out that the union had not disputed the reasonableness of the policy.
The arbitrator agreed with the employer. He found that despite the built-in flexibilities offered by the policy, it may be that an employee may not be able to maintain the required attendance that the employer expects. He held that the policy was a reasonable one that was reasonably applied, and, as a result, the termination was reasonable and justified. Therefore, the grievance was dismissed.
This case demonstrates the value of a clear and fair absenteeism policy which specifies a distinct threshold of acceptable absenteeism. When applied in good faith, even seemingly legitimate reasons for an employee’s inability to maintain consistent attendance may lead to a justifiable termination of his or her employment. In unionized workplaces, the union’s prior approval of such a policy will serve to bolster the employer’s eventual arguments about its reasonableness should the union challenge a dismissal or other disciplinary measure based on the policy.