The Right to Dismiss for Innocent Absenteeism: An Arbitrator's Perspective
Arbitration, Innocent Absenteeism, Disciplinary Discharge, Wrongful Molingering, Onus of Proof, Diagnosis, Prognosis, Sick Leave, Conditional Reinstatement
Innis Christie begins his review of innocent absenteeism at arbitration by setting out some of the general principles to be applied. He points out that these cases turn on diagnosis and prognosis, and he offers some guidance for distinguishing between cases of innocent absenteeism and cases of disciplinary discharge, such as for "wrongful molingering" or misuse of sick leave. Professor Christie then examines five specific issues: (1) onus of proof, (2) diagnosis and prognosis, (3) discharge of an employee while on sick leave, (4) impact of attendance records and compensation, and (5) conditional reinstatement. The latter two issues are discussed under the broader rubric of remedies.
Innis Christie, "The Right to Dismiss for Innocent Absenteeism: An Arbitrator's Perspective" in William Kaplan, Jeffrey Sack & Morley Gunderson, eds, Labour Arbitration Yearbook (Toronto: Butterworths, Lancaster House, 1993) 201.