The union grieved the employer's attendance management policy. The arbitrator found that the ban on overtime and reduction in hours were disciplinary and not corrective, and were being applied without just cause.
Unions representing health-care workers grieved an Attendance and Wellness Promotion program implemented by a regional health authority.
Beginning in 2008, employees who logged above average rates of paid sick leave were cycled through the employer’s five-stage Attendance and Wellness Promotion program (AWP).
At the first “Review” stage, the employer met with employees to review the work and leave calendar and assess different strategies to improve attendance. Employees who continued to log above-average rates of paid sick leave then progressed to Stage 1 of the AWP.
Stage 1 repeated the previous stage’s review and assessment process. However, Stage 1 also added a ban on overtime for the worker and imposed a requirement that the employee produce a medical certificate for absences of three or more consecutive days.
Workers continuing to count above-average rates of paid sick leave were advanced to Stage 2 of the AWP, which reaffirmed the previous measures with another meeting and a warning that the worker faced a reduction in hours of work at Stage 3.
Employees in the AWP at Stage 3 faced a reduction of work hours and a warning that their employment was in jeopardy. Stage 4 provided for non-culpable dismissal.
Overtime ban
The unions argued that the overtime ban, the reduction of full-time hours and the potential for termination of employment for non-culpable conduct rendered the program invalid. The unions said that these punitive aspects of the AWP, which provided for discipline without just and reasonable cause, violated the collective agreement, the principles of KVP Co. Ltd. v. Lumber and Sawmill Workers’ Union, Local 2537 and the Labour Relations Code.
The employer said it had the right to develop workplace policies to address absenteeism. The employer defended the AWP as a thoughtful and well-researched upgrade of its previous attendance management program. Elements of the AWP that the unions found objectionable were corrective rather than punitive. The employer said that the unions’ attack on the AWP was disproportionate.
The Arbitrator affirmed the employer’s right to implement workplace programs like the AWP provided that such programs did not violate the collective agreement or the principles of KVP. The Arbitrator favourably noted this employer’s emphasis on wellness as a component of the AWP and agreed too that the program was well researched and implemented in good faith after consultations with the union.
Punitive rather than corrective
The Arbitrator did not have a problem with the employer calling in employees to talk about attendance issues. Nor was it inappropriate, the Arbitrator said, for the employer to implement an attendance program that contemplated the use of progressive, corrective action to address workplace absenteeism.
However, the Arbitrator took issue with aspects of the AWP that were, in practice, more punitive than corrective.
The Arbitrator agreed with the unions’ assertion that the automatic overtime ban at Stage 1 was punitive in nature.
“I appreciate that at this workplace overtime is voluntary, but in my view automatically denying an individual the opportunity to volunteer for overtime as a blanket response to a non-culpable issue, is punitive in nature and will have obvious financial implications to those in the AWP.”
The Arbitrator conceded that it was conceivable that there could be cases where a reduction in overtime could be an appropriate corrective response. However, such a response would have to be tailored to particular circumstances and based on an individual analysis.
Similarly, the Arbitrator said that in some instances an employer could be permitted to reduce an employee’s hours or change their status from full to part-time employment as part of a corrective attempt to address an absenteeism problem. Again, however, the Arbitrator said that the employer’s automatic reduction of hours at Stage 3 of the AWP was problematic.
“The step of reducing an employee’s hours would be a step that I suggest should not be taken lightly or automatically as a progressive stage in an attendance management plan. To do so automatically would, in my opinion, be punitive and could not be justified.”
Questions about non-culpable dismissal
Employers are entitled to take non-punitive action to address non-culpable absenteeism. Employers are also entitled to terminate the employment relationship in circumstances where the employee’s record of absenteeism is excessive and where it is established that the employee’s performance is not likely to improve in the future.
“What is not clear from the policy as currently written, is that an individual assessment, based on… arbitral and human rights principles, is engaged at the Non-Culpable Dismissal Stage of the AWP. In fact, the AWP as currently written leads one to believe that the process is automatic and that if the paid sick leave time of an employee is above average over the course of the AWP process, the result is Non-Culpable Dismissal. Although I understand that is not the Employer’s position, nor has it been the result, the AWP literature leads one to conclude that this is the case.”
The Arbitrator ruled the automatic overtime ban and reduction of hours under the AWP to be unreasonable and punitive.
The grievance was allowed.
The employer was ordered to eliminate the automatic overtime ban along with the automatic reduction of hours at Stage 3 of the AWP.
The employer was also ordered to revise the AWP literature to address concerns about dismissal for non-culpable absenteeism and about how the appropriate arbitral and human rights principles apply.
Mark Rogers is a writer and editor who specializes in labour relations and occupational health and safety.
