Ask the ExpertCategory: QuestionsPersonal/Sick Days
hri_Admin Staff asked 4 years ago

I live in Ontario.
Once an employee has used up their 10 personal/sick days.  Can they be terminated with cause on the 11th absence?

1 Answers
Glenn Demby Staff answered 4 years ago

One thing that is clear is that you can’t terminate them BEFORE they use up their full complement of ESA-entitled personal/sick days. Whether you can fire them for absences beyond the ESA allotment is more complicated. And without knowing all of the facts, I can’t give a clear YES or NO. But generally speaking, if you’re talking about firing the employee BECAUSE he/she took the 11th day, the answer is almost surely NO. Let me lay out some general principles that you can apply to your situation.
First, you need to differentiate between culpable and non-culpable/innocent absences. Firing for the latter is far more problematic, especially if the cause of absence is an illness or physical/mental condition that constitutes a “disability” under human rights laws. In that case, you’d have to accommodate the absenteeism to the point of undue hardship. To prove undue hardship, you’d have to show that the absence has defeated the purpose of the contract and rendered it impossible for the employee to do his/her job and that it’s likely to continue for the foreseeable future.
Culpable absence is grounds for discipline but the usual limitations apply. In other words, the disciplinary action must be reasonable, appropriate and dispensed fairly and in accordance with your organization’s progressive discipline policy and procedures. An 11th day of culpable absence after 10 days of ESA leave would not normally be just cause to terminate unless there are aggravating factors or other causes. Sure, he/she missed more than 1 day–he/she missed 11, you could argue. The problem with that logic, though, is that you’re treating the 10 days of ESA leave as culpable and basically retaliating against the employee for exercising his/her ESA rights. That’s a no no.
Hope that helps. Glenn