Does Failing to Comply with Sick Leave Policy Give an Employer Just Cause to Dismiss an Employee?
Further, a written notice had been sent to the plaintiff on June 17, 2010 with respect to the plaintiff’s eligibility for vacation time in 2010. The letter stated:
Your vacation time for the calendar year of 2010 has now been exceeded. We approved the additional time because of the long distance that you were traveling. Please note that you are not eligible for any further vacation time in this calendar year.
The above letter was the only written warning received by the plaintiff. Subsequently, however the plaintiff called in sick on the evening of September 9, 2010 and the morning of September 10, 2010.
The plaintiff received a phone call from the defendant’s general manager on September 13, 2010 and discussed the plaintiff’s absence. The plaintiff did not return to work. On October 4, 2010 the defendant’s general manager terminated the plaintiff’s employment via telephone. The plaintiff was informed at this time that she was being terminated for ostensibly failing to comply with the defendant’s sick leave policy, which required an employee to provide a doctor’s to support absences exceeding three (3) days. The plaintiff immediately following the telephone call faxed the defendant three (3) doctor’s notes dated September 10, 2010, September 17, 2010 and September 27, 2017.
- whether the plaintiff terminated for just cause; and
- whether the plaintiff was entitled to punitive and/or moral damages.
The Ontario Superior Court of Justice’s Decision
The court, in reviewing the relevant the relevant jurisprudence concluded that although the plaintiff’s breach of the defendant’s sick leave policy was the basis for her termination, the legal requirement to satisfy a just cause dismissal requires an additional consideration. The Court stated, “[t]he legal question is whether the employee’s impugned conduct was sufficiently serious to justify her dismissal without notice. Depending upon the circumstances, alternatives to summary dismissal without notice (such as demotion or docking pay) must be considered by the employer before terminating an employee for cause.” (para 103). Citing McKinley v. BC Tel, 2001 SCC 38, the Court held that the underlying approach is about proportionality and requires a balance between the employee’s misconduct and the imposed sanction. In Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ON CA), 246 DLR (4th) 65, the Ontario Court of Appeal held that this aforementioned balancing requires a three step analysis. First, the nature and extent of the misconduct must be determined. Second, the surrounding circumstances must be considered. Finally, decide whether the dismissal was warranted.
The Court noted that the defendant’s request for doctor’s note to verify the plaintiff’s claim and request some kind of estimate on a return to work date was not unreasonable. However, the Court went on to state that “the requirement to provide a doctor’s note in a timely way cannot be described as an essential condition of employment; nor would I consider an employee’s failure to immediately comply with this policy a breach of faith or trust inherent in the work relationship.” (para 112). Further, the Court held that “while the plaintiff’s behaviour was inappropriate, her immediate termination of employment was disproportionate to the misconduct in question. Her failure to provide the doctor’s note in a timely fashion did not amount to misconduct sufficient to justify the summary dismissal of a 14-year employee.” (para 115).
As such, the plaintiff was entitled to reasonable notice, which in consideration of the Bardal factors was held to be ten (10) months. However, the Court also found that the plaintiff failed to mitigate her losses by failing to seek alternative employment for fifteen (15) month after her termination. The Court therefore reduced the plaintiff’s entitlement to six (6) month’s notice.
Punitive and/or Moral Damages
The Court held that although the plaintiff was wrongfully dismissal because the termination was a disproportionate sanction as compared to the plaintiff’s misconduct, the defendant’s conduct did not amount to “harsh, vindictive, reprehensible and malicious” (para 126, citing Honda Canada Inc. v. Keays,  2 SCR 362) as to justify an award of punitive and/or moral damages. It was held that the defendant was honest about its reasons for dismissing the plaintiff and “[t]his was not a pretext for some nefarious or improper reason.” (para 128). The plaintiff’s claim for moral and/or punitive damages was therefore dismissed.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.