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Lateness and absenteeism can justify dismissal when the conduct of the employee is found to have amounted to “willful disobedience” of an employer’s order or policy. In determining whether the lateness or absenteeism amounts to just cause for termination, the court will consider a number of factors, including:

  • the seriousness of the absenteeism/lateness, taking into account the employer’s work environment and the nature of employment;
  • whether the employee has been warned in the past for similar issues;
  • whether the employee occupies a senior position or has considerable length of service;
  • whether the employee’s conduct prejudiced the employer’s business;  
  • whether the employer has tolerated similar conduct in the past;
  • whether the reason for the absence was reasonable and therefore excusable;
  • whether the employee was dishonest about the reason for their absence; and
  • whether the employee’s absence was intentional.

 

A common question employers ask is whether employees can be fired for a single absence from work. The answer is “yes”, however this generally applies only for junior employees in circumstances where their absence from work is highly prejudicial to the employer. Additionally, before terminating an employee for a single absence it is important to consider whether their absence could be considered personal emergency leave in accordance with Ontario’s Employment Standards Act, 2000, as the employee may be protected from termination of their employment as a result.

The court’s decision in Aeichele v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Toyota), [1992] BCJ No. 1952 (BCSC), provides one example of a case where a single absence was sufficient to justify termination for cause. Aeichele involved a probationary sales manager at a car dealership who was explicitly told that he would be fired if he missed the last day of a three-day sale. The employee was absent for the final day of the three-day sale and was then fired for just cause. The court found that the employer’s instruction to the employee was reasonable in the circumstances, noting that the sale was a significant event and the presence of a sales manager at the event was “critical”.

Despite the court’s decision in Aeichele, in most cases, a single absence will not justify a termination for cause. For example, in Baxter v. Hallmark Ford Sales Ltd., [1995] BCJ No. 2776 (BCSC), the court found that an experienced business manager who was fired after extending her return to work due to a medical absence by four days had been wrongfully dismissed.

Courts also tend to provide leeway to long service employees, even if their absence is caused by their own misconduct outside of the workplace. For example, in Heynen v. Frito Lay Canada Ltd., [1999] OJ No. 3560 (CA), the court found that a driver-salesman with 23 years’ of unblemished service, who was fired after being convicted of a criminal offence while on medical leave which caused him to miss an additional two (2) months of work, had been wrongfully dismissed. The court found that the employee had been wrongfully dismissed as the employer failed to provide any reason why it could not continue to cover his absence from work until he was released from jail.

With respect to chronic lateness, in general an employer must clearly document the incidents and its warnings to the employee in order to establish just cause. If an employer does not take prompt and consistent action to remedy the issue, it will be more difficult for an employer to establish that it has cause for termination, even in the face of chronic lateness. For example, in Cain v. Roluf’s Ltd. (Roluf’s Camera Centre), [1998] OJ No. 661 (Gen. Div.), an employee was fired after being late 65 times and leaving work early 36 times in the year prior to her dismissal. Despite this, the court concluded that the employee was wrongfully dismissed because the employer had allowed the employee’s misconduct to continue and deteriorate over a long period of time, and provided inadequate and inconsistent warning letters to the employee.

The above-noted examples demonstrate that whether an employer has just cause for termination due to lateness or absenteeism will depend on the circumstances of each case. In some instances, one absence may be enough to establish cause – particularly if the employee’s attendance is critical to the employer. In other circumstances, not even a slew of attendance issues will be sufficient to establish just cause – particularly if the attendance issues have been allowed to continue without being properly addressed.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice.