Attendance Management and the Law – Case Study One
The Supreme Court of Canada upheld grievance arbitration decisions in two court cases endorsing the right of management to terminate union employees who cannot fulfill their basic employment contract of work for compensation.
Essentially the Court ruled an employer must help a disabled workers to do the essential duties of the job, not change the job to fit the functional abilities of the employee. This duty is found in Canada’s Constitution and the Human Rights Codes of each of Canada’s Provinces and Territories.
In addition, regular attendance at work is an essential duty under contract employment. At arbitration it was found neither employee was, for the foreseeable future, able to attend work regularly. They were chronic absentees. The principles apply whether OCC or non-OCC injury or illness.
I. The McGill Case (SCC) (2007)
1. Unionized employees
2. Terminated for chronic absenteeism
3. Return-to-Work attempts unsuccessful
4. At arbitration, totally disabled, prognosis indeterminable
5. Accommodated by Hospital/CBA provisions flexibly applied
McGill – Deschamps Judgment
“. . . there is no doubt that an employer may establish bona fide measures to ensure employees’ regular attendance.” (para. 18)
“. . . parties to collective agreement have a right to negotiate clauses to ensure that sick employees return tow work within a reasonable period of time.” (para. 18)
“. . .the establishment of a maximum period of time for absences is thus a form of negotiated accommodation.” (para.18)
1. Collective agreement provisions are relevant, not determinative.
2. Assessment to determine if “undue interference in the operation of the employer’s business” has occurred. (para. 20)
3. Assessment must be global “. . .starting from the beginning of the absence.: (para. 33)
4. A “global” assessment is one which does not compartmentalize an employee’s various health problems. (para. 33)
The Employee’s Role
1. Must be reasonable
2. If critical of a proposed employer accommodation – has an onus of proof.
McGill – Abella Judgment
1. Workplace requirements “. . .cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics.” (para. 48)
2. “no every distinction is discriminatory. . .” (para. 49)
3. “It is the link between that [protected] group membership and the arbitrariness of the disadvantaging criterion . . . that triggers the possibility of a remedy.” (para. 49)
4. Time-defined collective agreement provisions respecting health related absences . . . Are NOT arbitrary in the human rights context because “they do not unfairly disadvantage disabled employees because of stereotypical attributions of their ability.” (para. 56)
5. “The length of time provided by the negotiated clause must be assessed in the context of the nature o the employment and other relevant factors, to determine whether a prima facie case of discrimination is established.” (para. 59)
6. Held – no discrimination occurred in the case.
1. “Non-culpable absenteeism, including the failure to achieve a reasonable degree of attendance because of illness, is accepted arbitral jurisprudence as a just cause for dismissal.” (para. 18)
2. “This does not target individuals arbitrarily or unfairly because they are disabled: . . .it balances an employer’s legitimate expectation that employees will perform the work they are paid to do . . . with the legitimate expectations of employees with disabilities that those disabilities will not cause arbitrary disadvantage.” (para. 63)
McGill – Attendance Management Lessons
1. Each case must be determined on its own facts.
2. Collective agreement provisions are relevant factors in assessing the duty of reasonable accommodation.
3. Collective provisions cannot be applied mechanically. (workersxzcompxzkit)
4. Ask the question: “Are individuals being excluded based upon their actual abilities, or on attributed ones?”
5. The fundamental contract of employment – work, including regular attendance at work, for remuneration – anchors the analysis in all discrimination and duty to accommodate cases.
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