“Non-disciplinary, but inherently coercive”: Use of emergency leave absences for attendance management purposes is a reprisal, arbitrator rules

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An Ontario arbitrator has ruled that aspects of an attendance management program constitute a reprisal under the Employment Standards Act, 2000 (ESA). The award was made in the case of Natrel Inc. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Teamsters Local Union No. 647 (March 6, 2004) which resulted from a policy grievance filed by the union. Significantly, the ruling related to a program that provided the employer with considerable discretion in its application and enabled employees to raise human rights considerations and request accommodation at any time.

Participation in the program on a quarterly basis was triggered if an employee’s absenteeism was greater than thresholds based on the average absences at the company over the preceding 12-month period. The employer retained discretion to determine whether an employee should be brought under the program, based on a comparison of the employee’s absences with the average, and their individual circumstances.

Once in the program, employees were given an interview and were monitored for a three-month period. A follow-up letter was placed in the employee’s file, and they were given the opportunity to request accommodation under the Human Rights Code.

If attendance did not improve, the employee was given a second interview and informed of the consequences of continuing absence. They were also required to provide a doctor’s note for any absences in the following 12-month period.

If, after a further three-month period, attendance remained unimproved, a third interview was conducted and the employee was required to provide a detailed medical assessment of his or her fitness to perform the job. If the prognosis was poor, or if attendance remained unsatisfactory, the employee could be terminated.

EMERGENCY LEAVE COUNTED

The union objected to the fact that absences taken under the emergency leave provisions of the ESA were included by the employer when it calculated whether an employee’s absences exceeded the plant average. The ESA provisions allow employees in workplaces that regularly employ 50 or more employees to take up to 10 days of unpaid leave a year to deal with family emergencies, and to be reinstated to their positions following the leave (see “Emergency leave and agreements under the ESA 2000: new variables in the workplace mix” on our Publications page).

The union argued that this resulted in the program constituting a reprisal contrary to section 74 of the ESA. The arbitrator agreed. Noting that the evidence indicated that there was one employee whose participation in the program continued through the second interview solely because he had taken one day of emergency leave, the arbitrator stated:

    “I must conclude that continuing an employee in an attendance management program and requiring the employee to produce a medical certificate for every absence from then on, by reason only of having exceeded the threshold because of taking a day of emergency leave, would constitute a reprisal under Section 74. A requirement to produce a medical certificate is a significant burden on an employee, probably financial as well as in terms of an employee’s time and freedom. … An attendance management program may well be non-disciplinary, but it is inherently coercive in nature and is designed to get employees to take steps to change their conduct. An employee ought not to be dissuaded, even by non-disciplinary pressures, to forego a statutory right to emergency leave.”

The arbitrator stated that merely recording the use by employees of emergency leave is not a breach of the ESA. As well, the arbitrator held that employers may require employees to provide reasonable evidence that they are entitled to the leave. However, he held that, if use of an emergency leave day triggers or maintains an employee’s participation in the program, there is a breach of the ESA.

In Our View

In previous articles on attendance management programs (see “Attendance management program found wanting by arbitrator”, “Emerging issues in attendance management” and “Managing innocent absenteeism in the unionized workplace” on our Publications page), we have pointed out the following key features that programs must have to withstand scrutiny by arbitrators:

  • There must be no conflict between the provisions of the program and those of the collective agreement;
  • The program must be administrative and remedial in nature, not disciplinary;
  • It must be reasonable in its design and be applied in a reasonable manner; and
  • It must be consistent with human rights law.

To this list should be added the factor raised in this decision, namely that no element of the program can amount to a reprisal under employment standards legislation. As a result, employers should exclude any days to which an employee is entitled by statute when calculating whether the employee has exceeded the threshold that would require their participation in the program.

For further information, please contact Colleen Dunlop at (613) 940-2734.