Employers Need Not Tolerate 'Horrendous' Absenteeism

EP Update - March 12, 2005

In an unusual move, the Federal Court of Canada has reversed two accommodation decisions of the Canadian Human Rights Tribunal. In both cases, long service employees had been terminated as a result of their extremely high rates of absenteeism (in one case, approximately 30%). Both employees made complaints to the Canadian Human Rights Tribunal and in each case the complaint was upheld. The Tribunal held that each of the employers had not accommodated the employees to the point of "undue hardship." Specifically, it held that tolerating absenteeism could constitute "an acceptable type of accommodation." The employer appealed.

The Federal Court allowed the appeal. With respect to one of the employees, Judge Elizabeth Heneghan ruled that a discrimination claim had not been established because the employee had failed to show that the employer knew, or ought to have known, that she was suffering from a disability that required accommodation. With respect to the other employee, sufficient evidence had been presented to establish that the employee suffered from a legitimate disability. However, the Federal Court held that the Tribunal had erred in holding that the duty to accommodate required the employer to continue tolerating the employee's absenteeism. Quoting from a decision of the Federal Court of Appeal, Judge Heneghan stated:

It is a basic requirement of the employment relationship that an employee must be able to undertake work for the employer or, if temporarily disabled by a medical condition from doing so, must be able to return to work within a reasonable period of time [emphasis added].

In light of the employee's horrendous level of absenteeism which had been put up with by the employer for years, the judge ruled that "it is not reasonable, in my opinion, to require the employer to tolerate this [further]."

It is not clear whether the Federal Court came to this conclusion because the employee's absenteeism was horrendous or because the accommodation required was not temporary. However, what is clear is that the Canadian Human Rights Tribunal erred in law when it held that the employer's duty to accommodate to the point of undue hardship requires it to tolerate high levels of employee absenteeism indefinitely. While the Federal Court's decision will not be applicable in all circumstances, it does create a window for an employer to argue that it can terminate an employee whose rate of absenteeism has been excessive for a significant period of time.