The arbitrator ruled that the termination of the three employees was discriminatory due to disability and that they were to be reinstated. (Photo: iStock)
If an employee is on long-time disability and there is little chance he or she will return to work anytime soon, can an employer terminate the employee for absenteeism?
Not according to the following case where three employees on long term disability were terminated by their employer for the reason of non-culpable absenteeism.
The workers are part of a unionized workplace, and non-culpable absenteeism termination in the union context means that through no fault of the worker, he or she couldn’t work and the employer had to let the worker go, because the continued employment of the worker would present undue hardship to the employer.
The employer can let employees go for non-culpable absenteeism if he or she can show excessive absenteeism and evidence that it’s likely the employee won’t be able to come back to work on a regular basis.
Two out of the three employees suffered from multiple sclerosis, while the third from serious depression and evidence was that the employees were “totally disabled from any occupation.”
Though the termination would not affect the three employees’ continued entitlement to long-term disability benefits, it would result in them no longer being eligible to receive medical and dental benefits.
After the dismissal of the three employees, the union filed a grievance objecting to the termination due to discrimination. In addition, the termination would create financial difficulties for them, as they would no longer receive benefits.
The employer claimed that the employees were terminated not because it would save the employer money on benefit premiums but because there was no longer an employment relationship as these employees were unlikely to come back to work.
The arbitrator however found that the reason for the three employees’ dismissal was indeed the employer’s desire to save money on payments for benefit plans on their behalf. Terminating employees for non-culpable absenteeism for monetary reasons alone is not a good enough reason to let them go.
The arbitrator ruled that the termination of the three employees was discriminatory due to disability and that they were to be reinstated.
The employer has appealed the case and it will be heard at the British Columbia Court of Appeal in September 2016.