Koskie Glavin Gordon successfully represented two transit operators in companion cases recently released by the Workers’ Compensation Appeal Tribunal.
The transit operators had taken time off for medical conditions which the employer acknowledged were legitimate. Nevertheless, the employer sent the operators repeated letters threatening their termination if they “continued to miss work for any reason”. The employer claimed to be entitled to uniformly enforce its attendance policy against all employees, regardless of the reason for their absences.
The problem, as WCAT found, was the transit operators were obligated under the Workers’ Compensation Act not to attend work in their respective medical conditions – to have done so would have been unsafe for themselves and others. Therefore, the employer was threatening them for fulfilling a statutory duty.
The WCAT Vice-Chair accepted partner Will Clements’ argument that a threat of this nature is expressly prohibited by s. 151 of the Act, and ordered the letters removed from the transit operators’ files.
The two cases stand for the principle that employers cannot blindly apply attendance policies without regard to the reason for employee absences.