Author: Daniel A. Lublin
Ignorance may be real. But sometimes it leads to a paid vacation.
Fraught with personal problems, when busy season at work hit, equipment operator Brad Smith had little tolerance left. Despite supportive co-workers and comfortable patterns, a last-minute request to work overtime pushed Smith over the workplace ledge. Deciding that he needed time off work, Smith spoke to his supervisor, seeking assurance that he could leave. The response was swift: Smith was told to do “what you gotta do.” Believing this statement meant that he could simply pack up and leave, Smith left work – without indicating when he would return.
Without knowing where Smith was, and having failed in its various attempts to contact him, Smith’s employer, the City of Ramara, considered Smith’s absence to be misconduct and fired him. Smith responded by suing for wrongful dismissal.
At trial, Ramara argued that it had taken appropriate steps to reach Smith and that it didn’t have a duty to chase down an absent employee. But an Ontario court recently disagreed. Although Smith’s hasty departure was irresponsible, Ramara had did not have a written policy on vacation scheduling and its efforts to communicate with Smith while he was away were deemed haphazard by the judge. Ramara could have found Smith had it made the appropriate inquires, ruled the court.
Most importantly, the law of dismissal requires a consideration of context. Smith’s actions, however foolish, were judged against his unblemished employment history and the personal problems he faced at the time. Had he been a short-term employee, with a history of absenteeism or misconduct, the result in this case might very well have been different.
The lessons for both employers and employees are clear:
- Workplace absenteeism should be judged against whether there is a history of similar problems, whether warnings were given and whether a policy specifically defines what the employee ought to have done.
- If a workplace policy exists, follow it with conviction. Flexibility in how a policy is interpreted may limit its enforcement value.
- Always consider any mitigating factors in determining whether, or what type of, discipline should be imposed. Don’t learn of them, for the first time, after an employee has been fired.