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School No Excuse for Excessive Absenteeism, Arbitrator Rules in Upholding Termination

Fasken
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Labour, Employment and Human Rights Bulletin | HR Space

In a recent arbitration decision, Teamsters, Local Union 847 v Maple Leaf Sports and Entertainment, an arbitrator upheld the termination of a grievor for excessive absenteeism under the employer's Absenteeism Policy (the "Policy"). In doing so, the arbitrator rejected the union's submission that the grievor's absenteeism ought to be excused since she was studying for a professional degree to "better herself".

What Happened?

Under the Policy, employees can be absent without justification or penalty for up to 10% of their scheduled shifts between July 1 and June 30 each year. However, employees are deemed to be terminated from their employment if they are absent for more than 10% of their shifts in any one-year period between July and June. Both medically supported absences and personal emergency days under the then Employment Standards Act are not counted towards the 10% absentee calculation.

If by January of each year an employee appears to be approaching a 10% absenteeism rate, they are given a warning so that they may improve their record in the last six months of the year and fall below 10% before June.

The grievor worked part-time at the employer's Real Sports restaurant. Her employment was terminated after two years because her absenteeism rate in the year between July 1, 2017 to June 30, 2018 was 18.46%. The grievor claimed that her absenteeism rate was a result of her studying for her certified public accountant ("CPA") degree while also working a full-time job.

Although her attendance initially improved after she received her mid-year warning, she was unable to reduce her absenteeism in the second half of the year. The grievor claimed that in the first half of the year she requested a schedule change, but the employer refused. However, the arbitrator noted that the grievor did not ask for a leave of absence or inform her employer that she was studying for school.

In a further attempt to reduce the grievor's absenteeism rate, the employer treated the maximum allowable absences as personal emergency days on its own initiative, but the grievor's absentee remained above 10%.

The grievor's employment was terminated pursuant to the Policy. The union brought a grievance alleging that the grievor was discharged from her employment without just cause, contrary to the provisions of the collective agreement.

The employer submitted that the Policy is fair and allows employees to be absent without justification for up to 10% of their shifts (the maximum level the employer can tolerate), and gives employees opportunities to make sure their absences fall below 10%. The employer also asserted that the union had accepted the Policy.

Although the union did not disagree with the employer's arguments, it stated that the Policy should not be applied in these unique circumstances since the grievor was merely trying to "better herself".

The Decision

The arbitrator held that the Policy was both reasonable and reasonably applied in this case. In agreeing with the employer, the arbitrator stated that the Policy offered employees the flexibility to pursue other commitments while maintaining part-time employment. However, due to the extent of other commitments, an employee may not be able to maintain the level of attendance required as a part-time employee, as was the case with the grievor.

Regarding the Policy, the arbitrator noted that it mirrored absentee provisions that the parties agreed to in other collective agreements and the Policy had been accepted in this workplace as well as in other workplaces where the union held bargaining rights with the employer.

Key Takeaways

This arbitration decision confirmed that the employer did not have an obligation to accommodate an employee's educational studies outside of work. In this case, the union and the employer had agreed on a reasonable policy and the employer had applied the policy in a reasonable manner.

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