Oct 19, 2014

When examining the evidence in this case, the vice-chair of the Ontario Human Rights Tribunal dismissed the application brought by an employee because there was no evidence of discrimination whatsoever. This was clearly a case of absenteeism management done well. The employee's claim had no reasonable prospect of success because there was no link between the established disability and the employer's actions.

Facts of the case and decision

The employee began working as a temporary part-time warehouse employee with the employer and eventually became a permanent part-time employee.

According to the employee, he'd had chronic inner ear issues since he was a small child, which ultimately led to permanent hearing loss. He also had a dust allergy and was also diagnosed as being highly intolerant of wheat and dairy. The condition made him more prone to illness, and this led to issues with attendance. He also suffered from depression and anxiety.

According to the employee, he stated in his human rights claim that he was discriminated against based on disability because the employer did not manage his absenteeism properly. Moreover, the employee argued that the employer required him to attend numerous meetings to discuss his attendance, although he had provided medical documentation regarding his absences. He was also asked on two occasions to sign a consent form allowing the employer's medical adviser to contact his doctor directly, which he refused to do. Also, following a medical leave, he was not accommodated in terms of his workload when he returned to work. The employer was simply insensitive to his needs.

On the other hand, the employer denied any violation of the Human Rights Code. The employee was frequently absent from work for two years and his absenteeism was managed in accordance with the company Attendance Management Policy. Although the employer met with the employee about his absences, nothing inappropriate took place. It was important to note that some of the absences were not related to the employee's medical condition and the employee had no documentation relating to the absences. The employer accommodated the employee in accordance with the employee's medical restrictions, as identified by his physician after he returned to work after an extended leave of absence. Although the employer asked the employee to sign a consent form to allow direct communication with his physician, the reason for this was to facilitate the gathering of updated medical information in order to provide proper accommodation.

The tribunal found:

  • The employee was not obligated to provide information regarding his diagnosis when seeking accommodation. However, the employer accepted the employee's disability and the evidence was that the employer accommodated the restrictions identified by the employee's doctor. The tribunal accepted that the employee suffered from chronic severe bilateral inner ear disease and that this condition indeed constituted a disability

  • There was no documentation regarding additional mental health issues such as depression and anxiety, as posited by the employee. The employee never requested accommodation considering that there was no evidence that the employer accepted that the employee was diagnosed with mental health issues. As a result, there was no reasonable prospect of establishing that the employee was aware of these disabilities

  • The evidence could not show a link between the established disability (chronic severe bilateral inner ear disease) and the employer's reactions. In fact, the evidence showed that a significant portion of the absences were not related to disability. When the employer addressed the issue with the employee, there was nothing discriminatory about managing the absenteeism and giving a warning about the culpable absences

  • The evidence showed that there was no negative consequence as a result of disability-related absences. Consequently, it was held that the employee had no reasonable prospect of proving that the manner in which the employer managed his absenteeism amounted to discrimination on the ground of disability

  • Although the employer wanted the employee to consent to having the employer's medical adviser speak directly with his doctor, there were no repercussions when the employee refused. In fact, the employee agreed that the employer continued to accommodate his disability-related needs notwithstanding his refusal to consent. Therefore, the employer's actions did not amount to discrimination

Consequently, there was no reasonable prospect of proving that the employer did not accommodate the employee properly or that he was subject to discrimination or harassment because of the accommodation he received. The application was dismissed.

What can we take from this case?

When employers are faced with having to manage absenteeism that is culpable, it is important to remember the message that there is nothing discriminatory about managing culpable absences even when the employee has a known disability. When an employee is hired, it is expected that the employee will be regularly available for work as scheduled in return for payment for those days of work.

Conversely, it is important not to discipline for non-culpable absences. As was done in this case, it is important to accommodate and keep evidence of such accommodation. It is also important to keep reliable and accurate documentation distinguishing between the two absences and the two different kinds of employer responses.

As stated by Marcia McNeil and Sean Steele, employment lawyers,

"Non-culpable absenteeism occurs when an employee is, for reasons outside her control, not able to work. For example, an employee who cannot perform her duties at work due to illness or injury is absent for non-culpable reasons.

Culpable absenteeism occurs when an employee fails to attend work without a reasonable explanation. For example, an employee who sleeps through her alarm clock, or takes a sick day when she is not sick, is engaged in culpable absenteeism.

When dealing with culpable absences, the appropriate response is progressive discipline. The right disciplinary response will depend on the circumstances, including the employee's overall employment record, length of service, the nature and severity of the incident(s), and how similar situations have been treated in the past."