Which Absences Properly “Count” for Attendance Management

December 2017

Previously printed in the LexisNexis Labour Notes Newsletter.

The Federal Court of Appeal recently overturned a decision of the Public Service Labour Relations and Employment Board (the “Board”) concerning the National Attendance Management Policy (NAMP) promulgated by Correctional Service Canada (CSC) for its unionized employees: Bodnar v. Treasury Board (Correctional Service of Canada), 2017 FCA 171. The Board had determined that the NAMP discriminated against a group of employees because their absences related to disability and family reasons were counted for the purpose of comparing the employees’ attendance records to a rolling average attendance rate for the workforce.

The applicable collective agreement included clauses granting employees paid sick leave and paid leave for family-related reasons. The latter clause permitted leave for a variety of reasons (e.g. school functions or appointments with legal or financial advisors) that would not attract a human rights duty to accommodate under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “CHRA”).

The NAMP required that supervisors flag and make inquiries to verify absences when the employees’ total hours of absence exceeded the average for their peer group. If the absences were found to be culpable, the employer dealt with them through discipline outside the NAMP.  Similarly, absences due to causes attracting a human rights duty to accommodate were addressed according to those principles outside the NAMP.  The NAMP also allowed for the referral of cases requiring follow-up to the local NAMP coordinator, a more senior manager, and other consequences of progressive severity.

The application for judicial review of the Board decision addressed three issues:

  1. the appropriate standard of review;
  2. whether the Board erred in finding that prima facie discrimination can flow from the mere inclusion of certain types of absence in the attendance measures under the NAMP; and
  3. whether the Board erred in conflating the collective agreement family-related paid leave provisions with the types of leaves for family responsibilities that attract protection from discrimination on the basis of family status under the CHRA.

The Court held that the Board findings regarding the prima facie discrimination test were properly reviewed on a standard of correctness, while findings related to the application of that test were properly reviewed for reasonableness.  As a result, the Court reviewed the third issue (how the Board defined family status discrimination) on a standard of correctness, and the second issue (how the Board applied the prima facie discrimination test to the NAMP measure of attendance) on a standard of reasonableness.

The Board’s finding that the NAMP measure of disability or family-related absence constituted prima facie discrimination was, in the Court’s view, unreasonable in the absence of any analysis or finding of adverse treatment connected to this measure.  The Court noted that the only consequence of mere identification of an absence record in excess of the average under the NAMP was supervisory review of the legitimacy of the absences and/or identification of potential accommodation obligations.

The Court cautioned that its reasoning should not be understood to mean that NAMP-related decisions could never be discriminatory. The Court commented that adverse action taken by the CSC based on absences due to disability or family responsibilities attracting CHRA protection could constitute discrimination.

The Court held that the Board further erred by attributing human rights protection to all family-related leave permitted under the collective agreement, contrary to the Federal Court’s earlier identification of the following four factors to establish discrimination on the basis of family status related to family responsibilities:

  • a family member is under the employee’s care and supervision;
  • the family obligation engages the employee’s legal responsibility for the family member as opposed to personal choice;
  • the employee has made reasonable efforts to meet the family obligation through a solution that does not impact the workplace without success; and
  • the employee’s work commitment interferes in a manner that is more than trivial or insubstantial with the fulfillment of the employee’s family obligations.

The Court concluded that the scope of family-related activities attracting CHRA protection was significantly narrower than the family-related leaves permitted by the collective agreement.  The Board was incorrect, as a result, to attribute human rights protection to all of the collective agreement family-related leave.

Lessons for Employers

The key lessons for employers flowing from this decision are:

  • the mere measure of absence due to disability or other reasons attracting human rights protection does not offend human rights legislation;
  • attendance management programs that measure human rights-protected absence must include a mechanism to identify those absences and allow for accommodation;
  • employers must be in a position to defend adverse treatment which flows from absences that are human rights-protected; and
  • not all leaves related to family issues or demands attract human rights protection under the CHRA.