As more workplaces return to in-office and in person operations, some employers may encounter an increase in employees failing to attend at work on time or at all.
Generally, employers will not have just-cause to dismiss an employee for a single missed shift or absence. However, when lateness or absence continues unchecked despite warnings and progressive discipline, the attendance issues may provide just cause for termination.
A termination in such circumstances is not only a matter of discipline, but rather a recognition that an employer should be able to sever the employment relationship where the employee is unable to fulfill their implied duty to provide reliable service.
This principle was recently reinforced in Saskatchewan Labour Arbitration decision, The Administrative and Supervisory Personnel Association v. The University of Saskatchewan (2021), 147 CLAS 93 (Hood), wherein the Arbitrator held that the requirement to attend work is pivotal to the employment relationship, and that by failing to attend at work after being given a warning, the employee chose to accept the consequences that followed.
That being said, employers must keep in mind that repeated absences or lates do not absolve an employer of their duty to accommodate, even where the appropriate disciplinary procedures have been followed. Employers should always take measures to ensure any issues with attendance do not arise from circumstances which would qualify the employee for accommodation under The Saskatchewan Employment Act, The Saskatchewan Human Rights Code, 2018 or any applicable Federal legislation. Context, as always, remains key, and we recommend employers seek out legal advice prior to making any determinations with regards to an employee’s termination.
If you have questions regarding the termination of an employee for absences or refusal to return to in person work, we invite you to contact Lakefield LLP’s employment law group:
|Michael Krawchuk||Audrey Sembalerus|
|Partner | LAKEFIELD LLP||Lawyer | LAKEFIELD LLP|
This article is of a general nature only. It is based upon laws and policies in effect as of the date noted above, which may change. It is not intended to be relied upon or taken as legal advice or opinion. You should consult with your lawyer to confirm the current state of the law and obtain advice specific to your situation.