Canadian Employment Law Today

2 | December 7, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Last straw for employer not last straw for absent worker Worker's absenteeism reached extreme levels, but employer didn't follow progressive disciplinary approach before cutting her loose BY JEFFREY R. SMITH A NEWFOUNDLAND and Labrador government department must get updated medical information and investigate accom- modation options after it dismissed a worker for excessive absenteeism over several years. e worker was a client services officer in the Department of Advanced Education and Skills with the Newfoundland and Lab- rador provincial government. Her job duties included determining eligibility for support and monitoring the integrity of the program, while referring clients to other government departments or outside agencies. Much of this work was done through email and tele- phone. e worker came to management's atten- tion in 2008 due to a number of absences. e government's integrated disability man- ager met with the worker and her manager to see how they could help the worker remain in the workplace, but the worker thought she was going to be fired and was upset. e following year, there were still atten- dance concerns with the worker. In the 2008- 2009 fiscal year, the worker had used 24 paid sick days and 95 days of special leave unpaid (SLUP) — the latter a type of leave available when paid sick leave was used up. In De- cember 2009, the worker was referred to the employee assistance program (EAP) and a functional abilities report form (FARF) was provided for the worker's doctor to complete to help the department assist the worker with her attendance. e worker's psychiatrist completed the form and indicated the worker had no work restrictions nor any reason to miss work. Over the next fiscal year — 2009-2010 — the worker's attendance improved, though it was still considered excessive with 44 SLUP days used after her sick leave was exhausted. ere was a lot of sick leave used in the de- partment, but the worker's was still notably more than others. In the 2010-2011 fiscal year, the worker's sick leave was more sporadic and she didn't use it up until October. She only used a few SLUP days and no action was taken because the worker's attendance continued to im- prove. However, things got worse in 2012. Over the 2012-2013 fiscal year, the worker used 149 days in total of sick leave and SLUP days, including the entire month of July. e inte- grated disability manager discussed it with the worker, who said she had some anxieties about answering the telephones. Attendance worsened By January 2013, it became apparent that the worker's attendance record was worse than the previous three fiscal years com- bined and worse than 2008-2009. e dis- ability manager asked the worker for addi- tional medical information and provided a new FARF. e worker's doctor indicated on the form that the worker had no restric- tions on returning to work full-time and no restrictions to the cognitive and social de- mands of dealing with clients. e worker returned to work on March 4, 2013, but only lasted three days before go- ing off again for the rest of the month. e disability manager was aware the worker had shown behavioural issues regarding the pay- roll and requested more information from the worker's doctor about the worker's at- tendance issues. e doctor indicated they were discussing medication changes and counselling and the worker had "good po- tential for improvement" in her attendance. e worker returned to work on April 1 Canadian HR Reporter, a Thomson Reuters business 2016 CREDIT: SGM/SHUTTERSTOCK Ask an Expert will return.

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