A 2012 decision by the British Columbia Court of Appeal held that an employer’s right to terminate an employee for undue absenteeism will be taken away if the decision to dismiss an employee is influenced, at least in part, by an intent to prevent an entitlement to severance pay. More generally, the Court held that a decision to dismiss an employee for undue absenteeism must not be based upon considerations other than past and projected absenteeism.
Innocent or non-culpable absenteeism may provide just case for dismissal when the absenteeism is significant and it is established that the employee is incapable of regular attendance in the future. These circumstances normally arise where the employee is on long term disability or has a poor attendance record over a significant period of time.
However, even where such circumstances exist, an employer’s right to dismiss may be limited if it is established that the decision was tainted by an ulterior motive.
Such was the case in West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-1937, where an arbitrator found that the employer discriminated against a group of seven employees when it dismissed them for the purpose of avoiding payment of severance money, to which they would otherwise have been entitled under the collective agreement upon the permanent closure of the employer’s facility. The arbitrator also held that the grievors’ disability was a factor in the employer’s decision to terminate and that they were adversely affected by their dismissal because it affected their right to severance pay. Consequently, the arbitrator concluded that the employer discriminated against the grievors on the basis of disability when it terminated their employment.
The employer appealed the arbitrator’s decision to the BC Court of Appeal (2012 BCCA 50). However, the Court dismissed the appeal, concluding that the arbitrator’s decision was reasonable. In particular, the Court held it was reasonable for the arbitrator to decide that the employer’s motive was a desire to avoid paying severance pay. Furthermore, the Court held it was for the arbitrator to conclude that the grievors’ disabilities were a factor in their termination and that their dismissal was discriminatory.
This reasoning was followed in Langley (Township) and CUPE, Local 403 (Termination of Employees) (Re), where an arbitrator determined the termination of three individuals who were away from work due to long term disability, for the purposes of saving money on benefit premiums, was discriminatory. The BC Court of Appeal quashed the employer’s subsequent appeal.
These decisions are a reminder that employers seeking to rely upon innocent absenteeism as the basis for ending employment will need to establish that the decision to dismiss was not motivated by discriminatory reasons. It should be noted that while these awards did not attract damages for injury to dignity, feelings and self-respect, as it was litigated in the arbitration arena, the BC Human Rights Tribunal has awarded such damages in amounts well over $10,000 in similar circumstances.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.