On March 2, 2011, Arbitrator Kathleen O’Neil released her decision in The Ottawa Hospital v. The Canadian Union of Public Employees (March 2011) and dismissed part of the Union’s grievance of the Hospital’s decision to convert an employee from full-time to part-time due to innocent but excessive absenteeism. The Arbitrator ruled that in light the excessive absences, and the lack of any evidence to suggest that the employee’s attendance would improve in the future, the Hospital’s action was reasonable. André Champagne of Emond Harnden successfully represented the Hospital in the arbitration.
The grievor had undergone back surgery twice and suffered from chronic pain. The second surgery followed a compensable work injury in 2003. At that time she was employed by The Ottawa Hospital (the “Hospital”) in the housekeeping department. Following the surgery, she was accommodated with lighter housekeeping duties until 2005, at which point she was retrained by the Hospital and transferred to the position of ward clerk. Although the grievor was acknowledged to be an excellent ward clerk, she nevertheless had an extremely high rate of absenteeism.
The Hospital had a detailed policy for the management of employee absences called the “Attendance Management Plan” (the “AMP” or the “policy”). The AMP set out the responsibilities of managers, employees and occupational health staff for the management of employee absences. The policy provided for progressive administrative consequences where an employee’s attendance did not conform to the Hospital’s average rate of absenteeism.
The grievor was placed into the AMP in 2004. Over the three year period between 2005 and 2008 the Hospital calculated the grievor to be absent on 94 occasions – approximately 45% of the time. The absences were not grouped together, which would have allowed the Hospital to plan for them, but instead occurred on an unforeseeable and unexpected basis, hindering the efficient operation of the busy hospital unit in which the grievor worked. The Hospital was also of the view that the grievor failed to meet her responsibilities under the AMP by not providing proper medical documentation when she was absent. As a result, in April of 2008, the Hospital exercised its option under the AMP to reduce the grievor to part-time hours for a six-month period.
The Union contested the Hospital’s action on a number of grounds. It argued that the Hospital’s actions constituted a layoff and therefore, they had to be consistent with the layoff provisions in the collective agreement. This included a five-month notice period of any proposed layoff. The Union also claimed that the conversion to part-time was not responsive to the grievor’s particular medical condition, as the medical evidence did not necessitate a reduction in hours. It further argued that the six-month period of part-time status was arbitrary in that it was chosen only because it appeared in the AMP. The Union also contested the Hospital’s application of the AMP to the grievor, arguing that the grievor was progressed through the stages of the AMP in the same manner that would have been applied to a non-disabled employee. In the Union’s view, this constituted a breach of the Human Rights Code.
The Hospital’s Position
The Hospital acknowledged that where the absences were related to a disability, it had to satisfy the duty to accommodate. However, the Hospital took the position that the AMP was an appropriate tool to be considered in the continuum of its accommodation obligations. The Hospital framed the issue as a question of the reasonableness of its actions and the necessity to be able to address the situation where an employee cannot attend work on a regular basis. Relying on evidence that suggested that patient care may be affected by unpredictable absences, the Hospital argued that the point of undue hardship had been reached at the time of the conversion to part-time. It claimed that conversion to part-time was the only measure of accommodation available that would keep the grievor employed.
It further submitted that the language in the collective agreement demonstrated that it was within the parties’ contemplation that the Hospital would have the right to react to innocent absenteeism by way of demotion. It relied on article 3.01 of the collective agreement, which states in part:
The union shall be provided a copy of any written notice provided to an employee that he or she may be subject to termination, demotion, transfer, or other adverse impact for innocent absenteeism.
Based on this language, the Hospital claimed that demotion to part-time hours was clearly an option available to the Hospital. It urged that article 3.01 not be rendered meaningless by an alternate interpretation.
The Arbitrator’s Decision
At the invitation of both parties, the Arbitrator reviewed the AMP for the purpose of providing guidance and assistance to the parties in regard to its AMP. In this light, the Arbitrator carefully scrutinized various components of the AMP which may run afoul of either the collective agreement or human rights legislation. Nonetheless, the Arbitrator dismissed the Union’s arguments that the layoff provisions of the collective agreement had been breached. Based on the language in the collective agreement, the Arbitrator held that the layoff provisions would have to be stretched in order to apply to the administrative action taken by the Hospital. Instead, the conversion from full-time to part-time was better characterized as a demotion.
The Arbitrator also accepted the Hospital’s position that the option of reducing an employee’s hours to part-time, rather than termination, is not in itself discriminatory towards persons suffering from a disability. On this point the Arbitrator stated:
It is clear from the jurisprudence…that there comes a point where the employer is entitled to consider all of the absences in determining whether an employee can fulfill her bargain to attend work regularly, where there is nothing further that can reasonably be done to accommodate the disability to enable the employee to attend more regularly at work and there is little prospect for future improvement.
The Arbitrator found that the grievor was not fulfilling the Hospital’s expectations, either as to attendance at work, or as to the provision of the specific type of medical information required by the AMP. The absences were found to be excessive, and there was no evidence to suggest that attendance would improve in the future. The Arbitrator stated:
…there is no argument, submission or evidence before me that there was something that the grievor needed as accommodation, or that there was something other than offering part-time work that the hospital could have or should have done to further accommodate the grievor…
The Arbitrator dismissed that part of the grievance challenging the Hospital’s decision to convert from full-time to part-time, holding that the Hospital’s offer of part-time work rather than proceeding to termination was not shown to be unreasonable in the circumstances.
In our view
The decision represents a significant breakthrough in terms of how employers may deal with excessive absenteeism. The Arbitrator accepted the Hospital’s position that at the time of the conversion from full-time to part-time, the point of undue hardship was met. The demotion to part-time was seen to be in itself a form of further accommodation of the grievor’s disability. This was particularly true in light of the fact that termination was the only remaining option available to the Hospital. This decision makes it clear that in some circumstances, employers may take administrative action, such as conversion from full-time to part-time status, to address innocent absenteeism. It provides more options for employers to address attendance issues, even where the absences are related to a disability.
For further information, please contact André Champagne at (613) 940-2735.