Transit company’s attendance management program discriminatory: Court

B.C. Court of Appeal overturns Supreme Court decision and reinstates human rights tribunal’s finding that disability-related absences were treated the same as culpable absences

A Vancouver transit company’s attendance management program has been found discriminatory against employees with disabilities by the British Columbia Court of Appeal.

The appeal court upheld the appeal from the bus driver’s union of an 2009 decision by the province’s Supreme Court, which overturned a finding by the B.C. Human Rights Tribunal that Coast Mountain Bus Company’s program was unfair and caused some drivers to lose their jobs.

Coast Mountain implemented the program because it found absenteeism among its transit operators was higher than in other occupations. Once an employee was identified as having excessive absenteeism, she would have an informal meeting with her supervisor.

If there was no improvement, Coast Mountain would move the employee to the first step of the program, which would involve an official letter outlining the company’s concerns. Further lack of improvement would result in a medical assessment and then an interview accompanied by a letter with prescribed attendance targets.

The union challenged the program on the basis the figures used to establish a benchmark for attendance were based on an average of all employees and didn’t account for those with disabilities or consider their individual circumstances. Employees with disabilities were placed in the program before accommodation was considered.

The tribunal found this amounted to systemic discrimination and awarded damages of $5,000 to $6,000 to six employees who had been placed in the program because of absences caused by disabilities.

However, the B.C. Supreme Court overturned the decision, finding the program wasn’t discriminatory because it treated all employees equally and Coast Mountain had a right to address its absenteeism issues. Though it agreed the individual employees with disabilities should have been accommodated during the course of the program, the court said this was an issue with its implementation, not the program itself.

The B.C. Court of Appeal overruled the Supreme Court and reinstated the tribunal’s original decision. It ordered Coast Mountain to stop using the program for employees with disabilities and to pay the damages to the six employees.

“The placement of employees at Level 3 (of the program) on the basis of absences due to disabilities does, in my opinion, constitute systemic adverse treatment attributable to the disabilities. The employee’s employment is expressly put in jeopardy if they do not meet attendance parameters that the adjudicator found were invariably set without regard to any disabilities the employees may have,” said the Court of Appeal.

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