Good intentions, discriminatory effects

Board disapproves of using sick leave, family-related leave for attendance management
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 10/31/2016

A federal employer’s attendance management program discriminated against employees’ family status and disabilities by including leaves for those reasons in the threshold for entering them in the program, the Canada Public Service Labour Relations and Employment Board has ruled.

Correctional Services Canada (CSC) implemented a national attendance management policy (NAMP) for employees in 2011. The policy was designed to ensure effective communications between employees and management about absences so CSC could accommodate any needs that contributed to the absences. It was meant to help employees improve their attendance rather than penalize them. Managers were instructed to discuss absences with employees but not seek medical diagnoses.

Each month, managers and supervisors were to review employees’ leaves and look for patterns. If a pattern was identified and an employee passed an absence threshold, the employee would be interviewed. Documentation for the interviews was to be stored in confidential employee files available to supervisors only on a need-to-know basis. If the leave issues were addressed and not of concern, the matter ended there.

If accommodation was identified, leave related to it wasn’t included in the calculation of the threshold. In the absence of accommodation, both sick leave and family-related leave were used to calculate whether an employee crossed the absence threshold requiring an interview.

8 employees involved

Eight employees who worked for CSC at the Bowden Institution in Bowden, Alta., took leaves for various issues or conditions. Bonita Ebelher said the reasons for her absences were between her and her doctor and the leave she took was permitted under the collective agreement. She was put on an attendance management plan where she was required to certify all sick leave within a reasonable time or it would be without pay.

Ron Harrison had a daughter with a serious mental illness and another with a heart condition so he sometimes had to leave work to attend to them. He was informed he had gone over the NAMP threshold and his attendance was to be monitored for any patterns of absences.

Kendra Haldorson took 37.5 hours of family responsibility leave when her daughter required emergency surgery. When this was added to 87.5 hours of sick leave she had used, she crossed the NAMP threshold, but the deputy warden determined no further action was necessary.

Candice Westbury exceeded the NAMP threshold due to a negative sick leave balance from a seven-month disability leave in 2010. The deputy warden advised Westbury her attendance would be monitored.

Gallagher Keough broke his foot and had surgery, requiring an eight-week absence — all certified sick leave. He then was off for another month for additional surgery. He received a letter indicating the meeting was documented under the NAMP, which would remain in his file for one year.

Randi Bodnar used family responsibility leave and vacation leave to care for her mother. She was told her attendance would be monitored and a letter put in her file.

Two other employees — Mandelle Mitchell-Himler and  Kevin Williams — received letters under the NAMP and were required to meet with the deputy warden to discuss their exceeding the threshold for family leave and sick leave. Mitchell-Himler’s supervisor said more than half her leave was certified sick leave and much of the rest was family-related leave. Williams’ supervisor also recommended he not be placed on the NAMP because it was justified family leave that put him over the threshold. Mitchell-Himler was placed on attendance monitoring for three months while Williams required no further action, though the letter was placed in his file.

The eight employees grieved the NAMP, arguing it discriminated against them based on family status by not differentiating family leave from sick leave. They claimed the policy systemically discriminated against them by using family leave as part of the threshold calculation and failing to accommodate family status needs.

CSC and the deputy warden argued the NAMP was only supposed to ensure CSC was managing attendance properly and accommodating any employee absences that needed it. There was no disciplinary element to it, so employees who had documented meetings on their file and monitored attendance weren’t placed at a disadvantage.

Good reason, bad application

The board found the purpose of the NAMP was “laudable” but had problems with the way it was carried out. Calculating a threshold of absences for entry into the NAMP by including absences authorized under the collective agreement and those “directly attributable to the prohibited grounds of discrimination of disability and family status” did not take into account workers’ personal circumstances and therefore was discriminatory on its face, said the board.

“The threshold developed by the employer is based largely on sick leave usage combined with the use of family-related leave,” it said. “However, it does not distinguish between the uses of sick leave related to a disability and includes time used by employees related to their family status without any provision for evaluating the threshold on a case-by-case basis.”

Family-related leave was only available under the collective agreement for employees with particular family situations, said the board. Therefore, it should be obvious an employee who uses it qualifies for family status obligations and shouldn’t be penalized, which is essentially what CSC was doing.

The board also found CSC didn’t question the sick leave usage of the employees, but they were still required to meet with the deputy warden, had records put in their files, and had their attendance monitored. Even if CSC didn’t consider this disciplinary, it was differential treatment based on disability- and family-related leave.

CSC’s “arbitrary and rigid approach and the removal of any discretion at the supervisory level to prevent escalation to the NAMP level left no room for an assessment on an individual basis,” said the board.

The NAMP discriminated against the employees based on family status and disability, found the board. However, none of the employees suffered much in terms of pain and suffering, it said, so it only awarded damages of $250 for discrimination and $500 for CSC’s “wilful and reckless disregard” of its human rights obligations under the Canadian Human Rights Act and the collective agreement — for a total of $750 each.

For more information see:

Bodnar v. Treasury Board (Correctional Service of Canada), 2016 CarswellNat 4367 (Can. Pub. Service Lab. Rel. & Emp. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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