Policy found to discriminate against certain employees
A meatpacking company in London, Ont., will have to re-evaluate its attendance policy after an arbitrator said it did not have the prerogative to change in the first place.
Cargill, a live-kill chicken processing facility, came under fire for its attendance management program, which the union called unreasonable and unenforceable under collective agreement as well as the provincial Human Rights Code and Employment Standards Act.
The United Food and Commercial Workers (UFCW) local 175, which represents about 950 employees, filed a policy grievance on the grounds that Cargill’s attendance policy discriminated against certain employees who would be unduly punished for what the company viewed as absenteeism.
However, the employer argued the intention of the policy is to assist and support current employees in their non-culpable attendance issues.
According to Cargill, the program was "designed to identify employees with non-culpable attendance problems, put the employee on notice that their attendance level is unacceptable, identify the causes of the poor attendance and assist the employee to achieve acceptable levels."
More specifically, under the policy in question, Cargill established a set of rules (such as providing a doctor’s note or ample notice of a sick day) that, if violated more than five times in one year, would automatically put an employee into the attendance management program.
Once an employee is in the program, he will attend an initial interview, to be followed-up every three months with counselling. Of course, certain absences are excluded, such as jury duty or leave for union business.
While no discipline would be automatically or formally carried out as per Cargill’s attendance policy, it did note that if an employee reaches a certain level, he could be deemed unsuitable for his current position.
But as the local UFCW chapter pointed out at the hearing, the collective agreement contains a clause that provides employees wishing to cover a non-culpable absence with "emergency leave" or float holidays, with express permission from the employer.
Designating certain types of leave with corresponding absences is the root issue, said arbitrator Jesse Nyman.
"It is somewhat unsurprising that this grievance wound up proceeding to arbitration. If anything, what the foregoing cases make clear is that the assessment as to whether a given benefit or group of benefits ‘directly relate’ to an employment standard can be difficult," Nyman explained.
The purpose of an emergency leave day, Nyman determined, is to deal with unforeseen and immediate personal and family circumstances. The float holiday is exactly that — a holiday.
Because these types of leave had different and unrelated designations, Nyman found Cargill could not reduce en employee’s emergency entitlement by the number of float days to which he is entitled under the contract.
"If anything, Cargill adopted a reasonable and generous approach. All that this decision decides is that it was not open to Cargill to unilaterally change the nature and purpose of the floater days that had been negotiated under the collective agreement and thereby reduce a benefit under the Employment Standards Act to which the employees are otherwise indisputably entitled."
Reference: Cargill Value Added Meats London and the United Food and Commercial Workers local 175. Jesse Nyman — arbitrator. Daniel Leone for the employer, Maryanne Galati for the union. May 21, 2015.
