Union estopped from objecting to attendance requirement
The Canadian Union of Public Employees (CUPE) Local 1485 filed a grievance against Inverary Manor after the employer failed to award Patricia Gale with a temporary full-time position.
Inverary Manor is a residential, long-term care facility in Inverness, Cape Breton Island, Nova Scotia. Its elderly residents require personal care and supervision on a twenty-four-hour basis.
Employees within the bargaining unit represented by CUPE Local 1485 include dietary workers, environmental service workers, maintenance workers, cooks and continuing care assistants (CCA).
The employer has a long-standing practice of making a regular and consistent attendance history a condition or consideration in job offers. A formal Attendance Management Program (AMP) was introduced in 1992 and at the same time the decision was made to make regular and consistent attendance a mandatory aspect of job requirements.
Gale, a CCA with the employer, was counseled about her attendance in November 2011 and April 2012. The employer eventually decided to monitor her attendance pursuant to its AMP.
In late 2012 Gale requested an increase in her hours on a temporary basis. Management denied her request, responding in a letter that her "past attendance here at Inverary Manor has been an issue and has been addressed by management and granting you this increase would only set you up for failure."
On Sept. 3, 2013, a temporary full-time position became available following the resignation of another employee. Gale applied but was not selected for the position because she "had not demonstrated regular and consistent attendance, which is a requirement of the job."
The union filed a grievance on Gale’s behalf, seeking she be placed in the temporary full-time position. However, because Gale improved her attendance record following her application for the position in September, her hours were increased in November 2013 and in March 2014 she was released from the monitoring program. At the end of that month it was confirmed she would take over a full-time position effective Aug. 2.
At the hearing the union dropped its demand she be placed in a temporary full-time position and sought compensation for the period of time that Gale would have been in the full-time position had she been awarded the position in September 2013. The union argued the employer’s insistence on an additional condition of "regular and consistent attendance" was unreasonable and unconnected with the actual requirements of the position.
The employer, however, argued regular and consistent attendance was a reasonable requirement of any job, and it was especially true at the Manor. Residents required continuity of care, which could not be provided if CCAs were constantly changing due to absences.
Furthermore, the employer argued the union’s failure to ever grieve the addition of the requirement on job postings for the past two decades was an implied if not an express representation that it agreed regular attendance was necessary for employment at the Manor. The employer submitted the union was estopped from objecting to the requirement during the currency of the collective agreement and requested the grievance be dismissed.
Arbitrator Augustus Richardson agreed regular and consistent attendance is a basic requirement for any employment contract.
Richardson also agreed the union — although not expressly — agreed with the employer’s decision to include attendance as a job requirement, citing the two decades of practice and conduct between the parties. As such, he ruled the union in this case is estopped from objecting to the requirement and dismissed the grievance.
Reference: Inverary Manor and the Canadian Union of Public Employees Local 1485. Augustus Richardson — arbitrator. Noella Martin for the employer, Wanda Power for the union. June 23, 2014.
