Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 8 May 15, 2013 Auto shop applies quick fix for absenteeism THIS INSTALMENT of You Make the Call features an employee who was fired for too many absences from work. North Perimeter Service Centre was an automotive shop providing maintenance and repair service for heavy and light duty vehicles in Winnipeg. It hired an apprentice heavy duty diesel engine mechanic in November 2008. In late 2011, the mechanic took three months off for parental leave, returning on Jan. 9, 2012. Soon, North Perimeter became concerned with his attendance. The mechanic had been absent about 10 times before his parental leave, but Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. 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We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 7651 8 How would you handle this case? Read the facts and see if the judge agrees North Perimeter felt his attendance became "a lot worse" after he returned. On Jan. 28, 2012, the mechanic asked to leave one hour early because his wife was called into work and needed him to look after their children. His supervisor granted the request. On Feb. 11, his infant son was ill, his wife had already left for work and the babysitter wasn't prepared. The mechanic called his supervisor and the supervisor told him he could stay home to care for the child. Two days later, the mechanic showed up for his scheduled shift and was asked to meet with the operations manager. The manager told him he wasn't happy about the mechanic's absence two days earlier. He didn't want to terminate the mechanic's employment but he claimed other staff members had become disenchanted with the mechanic's attendance and the company had lost work due to his absence — there were only four mechanics in the shop and most of its business relied on a few major clients. On Feb. 17, the mechanic received his final paycheque and he called North Perimeter's payroll clerk to find out if he would be receiving pay in lieu of notice. The operations manager called to tell him there would be no wages in lieu of notice because he had been fired for cause — absences detrimentally affecting the company's operations and customer relationships. You make the call ✓ ❑ Did North Perimeter have just cause to dismiss the mechanic for excessive absenteeism? OR ✓ ❑ Did the employer owe the mechanic notice of dismissal? IF YOU SAID the mechanic was owed reasonable notice of dismissal, you're right. The labour board noted notice of termination provisions in the Manitoba Employment Standards Code did not provide for job security and employers were not prohibited from terminating an employee for any reason not excluded by law. However, if it wasn't going to provide reasonable notice, the employer had to prove it had just cause for dismissal, which would come from the employee failing to perform according to the employment agreement and thus repudiating it. It was possible for absenteeism to constitute just cause, depending on the circumstances, said the board. However, the board found the mechanic had been absent, at most, 10 times between the beginning of his employment and his parental leave. After he came back, he was only absent once and left early once, both with his supervisor's approval, to take care of his children. Though the business had a small staff and its business was vulnerable to absences, the board found these absences weren't excessive absenteeism and were not just cause for dismissal, particularly since the mechanic was up front and honest about the reasons. "(The mechanic's) absences were limited, condoned by the employer, and the employee was honest at all times regarding the reason for requesting to be absent," said the board. "Furthermore, the absences of the employee are not indicative of neglect of duty, disobedience, or conduct that was incompatible with his employment duties." The board also found the mechanic wasn't warned that his absences were a problem and could lead to discipline or termination, nor did North Perimeter have any policies respecting absenteeism that could give the mechanic an idea of what was acceptable. The board ruled termination was excessive and ordered North Perimeter to pay the mechanic four weeks' wages in lieu of notice, equal to $2,960, plus one day's wages for costs. See North Perimeter Service Centre Inc. and H.(J.)., Re, 2013 CarswellMan 97 (Man. Lab. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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