When can employer terminate for absenteeism?

High standard to dismiss for gross absenteeism.

According to Fleming v. J.F. Goode & Sons Stationers & Office Supplies Ltd., [1994] N.S.J. No. 249 (N.S.S.C.):

Absenteeism as a justification for dismissal, without notice ... [faces] ... twelve factors considered by the Courts in assessing whether the absenteeism, in the particular circumstances, is sufficient cause for summary termination:

"(1) It must be misconduct of significance"

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"(2) Failing to return promptly after a leave of absence, without advising one's employer, or taking time off despite a direct order not to do so."

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"(3) The employee took time off under false pretences."

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"(4) Prejudice to the employer's interest."

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"(5) Generally, two instances of absenteeism are required, particularly where the employee is of long service and has acted faithfully in all other respects."

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"(6) It must result from intentional misconduct, rather than just from a misunderstanding."

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"(7) It must be the fault of the employee."

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"(8) Where warnings are provided, they should specify that the employee will be terminated if his absences continue."

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"(9) Whether there is a reasonable defence, such as illness."

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"(10) The type of employment."

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"(11) An employee's history of long service without a record of significant absenteeism can be used as a mitigating factor."

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"(12) The onus of proof is on the employee to establish that he has received permission to take a leave of absence."