Managing absenteeism can be a significant challenge for Canadian employers. A wide variety of factual situations may be complicated by employment standards, privacy and human rights laws, as well as any applicable union agreements.
An example of the potential challenges of implementing an attendance management program (AMP) is the decade-long battle between Coast Mountain Bus Company Ltd. (CMBC) and the Canadian Auto Workers. It involved an AMP covering transit operators in the Greater Vancouver region of British Columbia.
How the fight started
A 1997 provincial auditor’s report found that absenteeism among Vancouver-based transit operators was twice the average of five other North American transit companies and resulted in over $8 million per year in direct costs. The report recommended that a comprehensive attendance management strategy be implemented. The auditor expressed hope that management and labor would work together to address the issues identified.
However, this hope was short-lived. The union took the position that the employer should focus on addressing the root causes of absenteeism rather than engage in what it viewed as an attack against sick people on the basis of absences beyond their control.
First battle: arbitration
The union brought a policy grievance in 1999, resulting in a lengthy arbitration award. The arbitrator held that the AMP as a whole was not unfair or unreasonable but directed CMBC to change certain parts that were objectionable.
Second battle: human rights tribunal
Unsuccessful in eliminating the AMP through the grievance process, the union filed a complaint with the British Columbia Human Rights Tribunal in 2003. The complaint included an allegation that the AMP systematically discriminated against employees who suffered from medical conditions or disabilities. The union argued that the use of average attendance targets in order to introduce employees to the program constituted discrimination that could not be justified.
The employer objected to the complaint because it was based on the same facts and raised the same issues as had been decided in the earlier arbitration. But the Tribunal allowed the case to proceed before it nonetheless, so that it could focus more fully on the human rights issues.
Three years and 156 pages later, the Tribunal allowed the systemic discrimination claim, finding that the program treated certain disabled employees as “attendance problems” and forced them into the AMP process. The Tribunal noted that although such employees could be accommodated in the later stages of the process, the threshold “entry” standard developed by CMBC did not address the individual circumstances of the employees. In the Tribunal’s view, the application of the attendance standard resulted in systemic discrimination against employees who had suffered from chronic or recurring disabilities.
Third battle: court
CMBC applied to the British Columbia Supreme Court for a judicial review of the Tribunal’s decision and was largely successful. The court overturned the finding of systemic discrimination. The court found the Tribunal had gone too far in ruling that the employer could not apply the average absenteeism threshold to disabled employees as a way of triggering entry into the program. The court observed:
The group of operators placed in the AMP, of necessity, must include individuals who have chronic, recurring and perhaps other types of disabilities. Such operators are not included in the program based upon some stereotypical or arbitrary assumptions about persons with disabilities. They are placed there because they have surpassed the number of days of absence that exceeds the average of their fellow operators, and the process is thus begun to determine how to assess and address their absences.
What ultimately saved CMBC’s AMP was the fact that there were many points within the process where the employees’ individual circumstances could be investigated and accommodated. In this context, there was nothing systemically discriminatory about monitoring employee attendance or providing warning letters to those whose rate of absenteeism was considered to be excessive.
Battle history lessons
Employers are entitled to expect regular attendance at work, subject to their duty to accommodate employees with disabilities that make it difficult to meet this requirement. While employers do not have a duty to change working conditions in a fundamental way, they do have a duty to arrange an employee’s workplace or duties to enable the employee to do his or her work, if it can be achieved without undue hardship.
A critical component of any attendance management program is built-in flexibility to address the circumstances of individual employees. A rigid and mechanical approach, even if applied consistently, will likely be struck down on human rights grounds. Thus, an employer must train its managers to apply its policies fairly, consistently, and in a flexible manner that addresses each employee’s personal situation.
As is illustrated by the CMBC example, the introduction of an attendance management program will not always be an easy process. It will involve a delicate balancing act by employers even in the absence of a union opposed to such a program.
Contact the author, Derek Knoechel
