A recent decision of the B.C. Human Rights Tribunal (BCHRT) found that an employer’s right to terminate an employee for undue absenteeism is limited where the effect of the termination will be to disentitle the employee to severance pay, or where the decision is based upon considerations other than past and projected absenteeism.
The doctrine of innocent or non-culpable absenteeism allows an employer to terminate an employee where the employee has significant absenteeism and it is established that the employee is incapable of regular attendance in the future. This situation normally arises where the employee is on long term disability or has a poor attendance record over a significant period of time.
The BCHRT decision, MacRae v. Interfor, found that the employer discriminated against the employee where the termination was for the purpose of avoiding the requirement to pay severance pay on the closure of the Squamish Mill. The employee was on long term disability with no expectation to return to work. However, the purpose and effect of the termination was to disentitle the employee from receiving $65,000 severance pay under the collective agreement.
The BCHRT held that Interfor was not entitled to rely upon absenteeism where the purpose was to disentitle the employee to severance pay. The BCHRT noted that the employer must be able to establish that it has only considered past and projected absenteeism I reaching its decision.
The award included a finding of discrimination, severance pay of $65,000 and damages for injury to dignity, feelings and self-respect of $12,500. The decision is a reminder that employers seeking to rely upon innocent or non-culpable absenteeism as the basis for ending employment will need to be able to establish a regular practice of review and termination not motivated by discriminatory reasons.
By: Alexander, Holburn, Beaudin & Lang, LLP. Contact: Andrew Wood at awood@ahbl.ca.
Reprinted from the Spring 2006 issue of Labour & Employment Practice
