Canadian Labour Reporter

more sick shifts within the period, the employee would be entered into the program's "Attendance @ Work" framework. The frame- work had four phases, each involv- ing the same occurrence and sick shift threshold for subsequent re- view periods. The hospital claimed the ASP was designed to monitor atten- dance and to provide awareness and support to employees whose attendance fell below the limit and was adopted from an Ontario Hospital Association guideline. The ASP had no specified con- sequences for employees who moved through any of the phases, as the hospital wanted to empha- size a supportive approach for employees with innocent absen- teeism. The Ontario Nurses' Asso- ciation (ONA) grieved the ASP two weeks after it was officially implemented. The ONA argued that the threshold of three occur- rences and five sick shifts was ar- bitrary as it didn't reflect the hos- pital's actual attendance statistics regarding nurses at the hospital. It also said the ASP violated the collective agreement and the On- tario Human Rights Code by fail- ing to address situations where an employee had absences relat- ing to a disability causing the em- ployee to be entered into the ASP framework — leaving the possi- bility that an employee with a dis- ability would move more quickly through the framework without a proper assessment on whether she could be accommodated. The collective agreement stat- ed "There will be no discrimina- tion by either party or by any of the nurses covered by this agreement on the basis of race, creed, colour, national origin, sex, sexual orien- tation, marital status, family sta- tus, age disability, religious affili- ation or any other factor which is not pertinent to the employment relationship." The hospital countered that the ASP was within its management rights, which were also outlined in the collective agreement and per- mitted it to "make and enforce and alter from time to time reason- able rules and regulations to be observed by the nurses, provided that such rules and regulations shall not be inconsistent with the provisions of the agreement." The hospital also argued there was no detriment to employees who were counted in the ASP and because there were no set conse- quences or actions at each phase of the framework, there were op- portunities to address individual circumstances and accommoda- tion options. Arbitrator Elaine Newman found that the ASP framework had been "thoughtfully con- structed" for supportive reasons relating to innocent absenteeism by employees. However, she also found that there was "obvious po- tential for actual negative impact on the employee" because once an employee advanced through all the phases of the ASP, it was possi- ble that non-disciplinary termina- tion of employment could happen if the hospital determined there was a frustration of the employ- ment contract. Looking at the hospital's man- agement rights, Newman agreed with the hospital that it was en- titled to set the bar for attendance expectations and promote regular attendance at work, in the name of operating in an efficient way. The collective agreement supported those management rights, with the qualifier that the rules invoked were reasonable. Newman also found the thresh- olds of three occurrences and five sick shifts as the triggers for em- ployees' entry into the ASP frame- work qualified as reasonable un- der the collective agreement. These thresholds may not have been based on attendance sta- tistics, but the ONA didn't pro- vide any evidence showing it had an unreasonable impact on the hospital's nurses, said Newman, while also noting that the number of employees involved in the ASP dropped from 448 initially at im- plementation to 262 one year later. However, despite the fact the thresholds for entering the ASP were reasonable, Newman found the program as a whole didn't adequately protect workers as required by the collective agree- ment and the code. Though the framework allowed for opportu- nities to address disabilities and accommodation, these opportu- nities were not specifically pro- vided for in the ASP, nor was there any instruction as to how to pro- ceed with accommodation. "When an attendance manage- ment program does not clearly and adequately instruct its managers and administrators on this point, it introduces into the workplace a risk that an individual with a dis- ability will fall victim to an auto- matic administrative process that fails to be compliant with the spirit or the requirements of the Human Rights Code," said Newman. She pointed out that without such instructions, management could follow the ASP framework to the letter, which would be counter- productive and meaningless if the employees receiving warning let- ters and meeting invitations were missing work due to disabilities. Newman dismissed the part of the ONA's grievance involving the thresholds for entrance into the ASP, finding they were rea- sonable and within the hospital's management rights under the col- lective agreement to establish in the ASP. However, she upheld the part of the grievance dealing with addressing disabilities and ac- commodation, determining that the ASP didn't adequately address employee disabilities. For more information see: • Southlake Regional Health Centre and ONA (201503182), Re, 2016 CarswellOnt 9615 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Attendance pg. 1 'Obvious potential for actual negative impact on employee' Photo: LesPalenik (Shutterstock) The attendance program at the Southlake Regional Health Centre didn't adequately address worker disabilities, found an arbitrator. Opportunities to address disabilities were not specifically provided for in the ASP.

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