In General, an employer has a reasonable expectation that employees will not be late for work on a regular basis and on time. If an employee is regularly absent without permission then, under the right circumstance, the employer may have grounds for a summary dismissal. With a summary dismissal, the employer is entitled to end the employment relationship and not be liable for notice pay.
Circumstances that warrant a summary dismissal for lateness may include instances where the employee was absent during a very important time, where the absence was deliberate after having received warnings from the employer regarding past absenteeism, and where the employer was prejudiced (or harmed) by the employee in their absence. A couple examples of the above are as follows:
If there is a very important 3-day sales event and the employer makes it clear to a key sales manager that his or her presence is necessary, a deliberate absence would probably grant the employer just cause for termination. In this example, the relevant factors are the importance of the event and the position of the sales person being managerial (a key role). An example of prejudice by an employee may be an instance where a request for vacation time was denied due to business reasons (short staff, busy time-period, etc.). In this instance, if an employee were to be absent during the time that was requested off, this could be cause for dismissal because the employee caused the employer harm, knowing that the time off was not granted.
With regards to lateness, the threshold for summary dismissal is higher. Lateness usually must hinder the employee from performing the essential duties of their job. Important factors to consider are whether the time was ever made-up by the employee, whether lateness is an ongoing issue, whether warnings were previously issued, the harm caused to the employer, and whether the lateness was the fault of the employee. A single lateness is unlikely to be cause for summary dismissal.
In considering termination for lateness and absenteeism, an employer must ensure that no human rights grounds are being violated. If an employee’s lateness or absenteeism is the result of illness, childcare obligations, or any other prohibited discriminatory grounds under the Ontario Human Rights Code, the employer must reasonably accommodate. In this instance, it is advised that employers seek legal advice as the duty to accommodate can be a complicated issue. Employees also should make employers aware if lateness or absenteeism is a result of illness, medical conditions, or childcare obligations as an employer cannot accommodate without knowledge of the situation.