Employee Denied Termination Pay Because He Violated His Employer’s Attendance Policy
An employer can avoid paying an employee termination pay under Ontario’s Employment Standards Act (ESA) if the employee engages in willful neglect of duty, willful misconduct and/or willful disobedience that is not trivial and is not condoned by an employer.
For more information on the ESA, click here.
The Exel Canada decision
In a recent decision, Exel Canada Ltd v McCarthy, 2014 CanLII 19404 (ON LRB), the Ontario Labour Relations Board concluded that an employee was guilty of such misconduct after he failed to call in to work when he was absent on four occasions over a seven month period without a reasonable explanation. The OLRB overturned an order issued by an employment standards officer. The employee did not attend the appeal.
How to Terminate an Employee for Failure to Call into Work: A Case Study
1. Have a Policy
In this case, Excel Canada had an Attendance at Work Policy which required an employee to call in before the start of the shift if he was going to be absent. The Policy provided for flexibility if there were extenuating circumstances.
2. Make Sure the Employee is Aware of the Policy
The employee was trained on the policies and was well aware of the requirement to call the Company if he was going to be absent.
3. Enforce the Policy
After receiving a verbal warning for violating this policy, the employee was given awritten warning for calling in late to report his absence. About two months later he was given a second warning and suspended for one day.
4. Provide the Employee with a Final Written Warning
About three months later, the employee was issued a three-day suspension and a final warning for his failure to call in yet again.
About three months later Mr. McCarthy missed another day of work – an overtime opportunity – and did not call in to inform the Company that he was not coming in. He said he forgot and spent the day with his children. Thereafter the employer terminated the employee.
What if Mr. McCarthy Had Commenced a Wrongful Dismissal Action instead of an ESA Complaint?
A terminated employee can file a complaint under the ESA, or a wrongful dismissal action in the courts, but not both.
If Mr. McCarthy had commenced a wrongful dismissal action in the courts instead of filing an ESA complaint then the employer would have had to prove it had “just cause” to terminate his employment.
The evidence needed to prove just cause is different than the evidence needed to prove willful misconduct that is not trivial or condoned. In particular, the court will consider the serious of the misconduct and a number of mitigating factors such as the employee’s length of service when deciding whether just cause existed.
For more information on what constitutes “just cause”, click here.
An employer should carefully consider whether an employee has engaged in willful misconduct that is not trivial before voluntarily paying out ESA termination pay.
To encourage specific workplace behavior such as good attendance an employer should implement a policy, communicate it to employees, consistently enforce it, and provide an employee with a final written warning before terminating the employee for poor attendance.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, please contact him at 416 317-9894 or by email at [email protected]
I was largely an employment COVID lawyer this year and a mandatory COVID vaccine policy lawyer for a part of the year. So, not surprisingly my top employment law stories for 2021 are all COVID related. COVID 19 - Temporary Layoffs Under the Infectious Disease...
An employer cannot discriminate on the basis of gender identity. An employer is required to refer to an employee using the pronoun of the employee’s choice. Refusal to do so is a violation of the Ontario Human Rights Code (the “Code”). An employee can file a no cost,...
New obligations are being imposed on employers as a result of the Bill 27, or the Working for Workers Act, 2021. Three new obligations that will be imposed on employers: 1. Employers who employ 25 or more employees will be required to have a written policy with...