Swipe, go, fired? What attendance issues can mean at work

Attendance has become one of the most closely watched workplace issues in the post-pandemic era. As more employers require employees to return to the office, disputes are emerging over badge data, hybrid work expectations, absences, remote work practices, and discipline for alleged non-compliance.

In June of this year, nearly 50 former BCE (Bell) employees filed a wrongful dismissal claim after being terminated for alleged “swipe and go” conduct. According to the report, the employees were accused of entering the workplace with their access cards to satisfy attendance requirements and then leaving shortly afterward. The employees allege that the terminations were improper and connected to a broader workforce reduction strategy. The allegations have not yet been tested in court.

The story highlights a larger issue for workplaces: attendance problems are rarely just about whether someone was physically present. They can involve workplace policies, disability accommodation, discipline, termination for cause, remote work arrangements, and whether an employer has clearly enforced its expectations.

Attendance policies need clear expectations

Attendance issues often begin with a basic question: What did the employer actually require? In a traditional workplace, attendance expectations may be straightforward. Employees may be expected to report to a specific location at a specific time, remain there for scheduled hours, and follow notice procedures when absent or late. In a hybrid workplace, the details can be more complicated.

A return-to-office policy may require employees to attend the workplace a certain number of days per week. It may also explain whether employees must remain on site for a full workday, whether partial days count, whether managers can approve exceptions, and how attendance is tracked.

When expectations are unclear, disputes can arise. An employee may believe that swiping into the office for a meeting satisfies the policy. An employer may take the position that the policy required a full in-office workday. These kinds of differences can become significant if the employer later relies on the alleged breach to impose discipline or terminate employment.

‘Swipe and Go’ allegations raise misconduct questions

The reported BCE dispute centres on alleged “swipe and go” behaviour. In general terms, this refers to an employee using a badge or access card to record entry into the workplace, then leaving shortly afterward.

From an employer’s perspective, this type of conduct may raise concerns about dishonesty, falsification of records, breach of policy, or failure to follow return-to-office requirements. From an employee’s perspective, the issue may be more nuanced. The employee may say they had manager approval, that the policy was inconsistently enforced, that the expectations were unclear, or that the employer had previously accepted the same arrangement.

Legally speaking, context matters. The same attendance issue may be treated differently depending on the nature of the workplace, the employee’s role, the clarity of the policy, the employee’s explanation, the employer’s past practice, and whether the alleged conduct was intentional.

Termination for cause: a serious step

When an employer terminates an employee “for cause,” the employer is usually taking the position that the employee’s conduct was serious enough to end the employment relationship without notice or pay in lieu of notice.

Attendance-related misconduct can sometimes lead to discipline. However, not every attendance problem will support termination for cause. The surrounding facts are often important, including whether the employee was warned, whether the conduct was repeated, whether the employee was honest when questioned, and whether lesser discipline was considered.

Condonation can become an issue

Condonation is an important concept in attendance disputes. It generally refers to situations in which an employer knows about certain conduct but allows it to continue or responds in a way that suggests it is accepted.

For example, if employees regularly work remotely despite a written attendance policy and managers are aware of the arrangement, the employer may face questions if it later treats the same conduct as serious misconduct. This does not mean an employer can never change expectations. However, a change may require clear communication, consistent enforcement, and an opportunity for employees to adjust.

In the BCE claim, the former employees alleged that the employer had condoned the conduct for months or years and that they had given express or implied consent to their work arrangements. They reflect a common issue in employment disputes: what happened in practice may matter just as much as what a policy said on paper.

Warnings and progressive discipline

Attendance concerns often develop over time. An employee may repeatedly be late, miss shifts, fail to attend required office days, leave early, or fail to follow call-in procedures. In many workplaces, the response may involve coaching, written warnings, performance management, or progressive discipline.

Whether warnings are required depends on the circumstances. Some forms of serious misconduct may lead to immediate termination. In other situations, an employee may argue that they should have been warned about the problem and given an opportunity to correct it.

Progressive discipline can be especially relevant where the issue involves policy compliance rather than a single incident of serious wrongdoing. If an employer has not clearly told employees that a particular attendance practice may lead to termination, that may become part of the legal analysis if the termination is challenged.

Attendance problems can involve accommodation needs

Not all attendance issues constitute misconduct. Some absences or attendance challenges may be connected to disability, illness, injury, family status, or another protected ground under human rights legislation.

For example, an employee may have difficulty attending work regularly due to a medical condition. Another employee may need schedule adjustments during treatment or recovery. A return-to-office requirement may also raise accommodation questions if an employee has disability-related limitations that affect commuting, workplace exposure, mobility, or the ability to work in a particular environment.

Employers may have a duty to accommodate disability-related needs to the point of undue hardship. Employees also generally have a role in the accommodation process, which may include providing relevant information to support the request. Attendance management should be handled carefully when protected grounds are involved.

Sick leave and job-protected leaves

Attendance management may also overlap with statutory leaves under employment standards legislation. Most employees in Ontario, for example, are entitled to unpaid, job-protected sick leave if they meet the eligibility requirements. Ontario also has a long-term illness leave for eligible employees with a serious medical condition.

These leaves do not mean every absence is automatically protected in every circumstance. However, they are important considerations when reviewing attendance records, imposing discipline, or ending employment.

Employees should also understand workplace reporting requirements. Even where an absence is protected, the employee may still be required to notify the employer, provide reasonable information, and comply with lawful policies about absences and documentation.

Remote and hybrid work have changed the attendance conversation

Before widespread remote work, attendance was often measured by physical presence. Today, many employees perform some or all of their work away from the office. This has changed how attendance is tracked and understood.

In hybrid environments, employers may use badge data, login records, VPN activity, meeting attendance, timesheets, productivity measures, or manager reporting to assess compliance. These tools can create their own issues. Badge data may show entry into a building, but not necessarily how long someone worked, what they did, or whether they had approval to work elsewhere.

Employees may also have informal arrangements with managers that are not reflected in formal policies. This can create risk for both sides. A written policy may say one thing, while the day-to-day practice says another. When disputes arise, emails, calendar records, team messages, manager approvals, and prior patterns may become relevant.

Attendance issues can affect severance and wrongful dismissal claims

When employment ends due to attendance issues, the legal consequences may depend on whether the termination was with or without cause. In a without-cause termination, the employee may be entitled to notice, termination pay, severance pay if applicable, and possibly common law reasonable notice, depending on the circumstances and the employment contract.

If the employer alleges cause, the dispute may focus on whether the alleged attendance issue was serious enough to justify ending employment without notice. The employee may challenge the termination by arguing that the policy was unclear, the conduct was condoned, the employer acted inconsistently, the investigation was unfair, or the conduct did not meet the required legal threshold.

This is why attendance cases can be fact-specific. A dispute may involve much more than a spreadsheet showing missed days or office badge entries. The full employment relationship, workplace practices, and communications may all matter.

Clear policies can reduce disputes. So can consistent enforcement, documented approvals, careful accommodation processes, and proportionate responses to attendance concerns.

The BCE lawsuit has not yet been decided. However, it shows how quickly attendance disputes can become high-stakes employment litigation, especially when termination for cause is alleged. As hybrid work continues to evolve, attendance expectations are likely to remain an important issue for employers and employees alike.

Paulette Haynes is the founder of Haynes Law Firm, a boutique employment law firm in Toronto.