Canadian Employment Law Today

was bedridden. Bodnar was responsible for her mother's care and business affairs, so of- ten had to take time off. She also frequently used sick leave because she was often ex- posed to illness at work and wanted to avoid exposing her mother to it. When her leave exceeded the NAMP threshold, she met with the deputy warden and was advised her at - tendance would be monitored and a letter placed in her file. Two other Bowden employees — Man- delle Mitchell-Himler and Kevin Williams — received letters under the NAMP and were required to meet with the deputy war- den to discuss their exceeding the threshold from family leave and sick leave. Mitchell- Himler's supervisor recommended she not be placed on the NAMP because more than half her leave was certified sick leave and much of the rest was family-related leave to care for her son, who had a medical problem. Williams' supervisor also recommended he not be placed on the NAMP because it was justified family leave that put him over the threshold. Mitchell-Himler was placed on at - tendance monitoring for three months and Williams required no further action, though the letter was placed in his file. e eight Bowden employees grieved the NAMP, arguing it discriminated against them based on family status by not differ - entiating family leave from sick leave. ey claimed the NAMP systemically discrimi- nated against them by using family leave pre- scribed in the collective agreement as part of the threshold calculation and failing to ac- commodate their family status needs. CSC argued that the NAMP was only supposed to ensure CSC was managing at- tendance properly and accommodating any employee absences that needed it. ere was no disciplinary element to it, so employees who had documented meetings on their file and monitored attendance weren't placed at a disadvantage. Good reason, bad application e board found the purpose of the NAMP — constructive communication about em- ployees' attendance to resolve underlying causes for absences — was "a laudable con- cept," but there were problems with the way it was carried out. Calculating a threshold for entry into the NAMP by including absences authorized under the collective agreement and those "directly attributable to the pro - hibited grounds of discrimination of dis- ability and family status" did not take into account the personal circumstances of each employee and therefore was discriminatory on its face, said the board. "e threshold developed by the employer is based largely on sick leave usage combined with the use of family related leave," the board said. "However, it does not distinguish between the uses of sick leave related to a disability and includes time used by employ - ees related to their family status without any provision for evaluating the threshold on a case-by-case basis." e board noted that family related leave was only available under the collective agree - ment for employees with particular fam- ily situations that required it. erefore, it should be obvious that an employee who uses it qualifies for family status obligations and shouldn't be penalized, which is essen - tially what CSC was doing by including fam- ily-related leave in calculating the NAMP threshold. All of the employees concerned — except for Ebelher and Keough — would not have been entered into the NAMP if it weren't for their use of family responsibility leave, said the board. e board also found that CSC didn't question the sick leave usage of any of the employees, but they were still required to meet with the deputy warden, had records put in their files, and some had their at - tendance monitored — even when man- agers recommended no action. Even if CSC didn't consider this disciplinary, it was differential treatment based on dis- ability-related and family-related leave. CSC's "arbitrary and rigid approach and the removal of any discretion at the su- pervisory level to prevent escalation to the NAMP level left no room for an assess- ment on an individual basis," the board said. e board found the NAMP discriminated against the employees based on family status and disability. However, it also found none of the employees suffered much in terms of pain and suffering, so it only awarded dam - ages of $250 for discrimination and $500 for CSC's "wilful and reckless disregard" of its human rights obligations outlined in the Ca- nadian Human Rights Act and the collective agreement — for a total of $750 for each of the eight employees. For more information see: • Bodnar v. Treasury Board (Correctional Service of Canada), 2016 CarswellNat 4367 (Can. Pub. Service Lab. Rel. & Emp. Bd.). ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. Canadian HR Reporter, a Thomson Reuters business 2016 October 26, 2016 | Canadian Employment Law Today

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