Canadian HR Reporter

CANADIAN HR REPORTER October 31, 2016 EMPLOYMENT LAW 5 Jeffrey Smith Legal View ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. More detail and a wider scope of legal contact information for Ontario: • Over 26,800 lawyers listed • Over 8,500 law firms and corporate offices listed • Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers NEW EDITION Perfectbound Published December each year On subscription $82.50 One time purchase $86 L7796-5932 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) Good intentions, discriminatory effects Board disapproves of using sick leave, family-related leave for attendance management A federal employer's attendance manage- ment program discriminated against em- ployees' family status and disabilities by including leaves for those reasons in the threshold for entering them in the pro- gram, the Canada Public Service Labour Relations and Employment Board has ruled. Correctional Services Canada (CSC) implemented a national attendance management policy (NAMP) for employees in 2011. e policy was designed to ensure effective communications between employees and management about absences so CSC could accommo- date any needs that contributed to the absences. It was meant to help employees improve their atten- dance rather than penalize them. Managers were instructed to dis- cuss absences with employees but not seek medical diagnoses. Each month, managers and su- pervisors were to review employ- ees' leaves and look for patterns. If a pattern was identified and an employee passed an absence threshold, the employee would be interviewed. Documentation for the interviews was to be stored in confidential employee files avail- able to supervisors only on a need- to-know basis. If the leave issues were addressed and not of con- cern, the matter ended there. If accommodation was identi- fied, leave related to it wasn't in- cluded in the calculation of the threshold. In the absence of ac- commodation, both sick leave and family-related leave were used to calculate whether an employee crossed the absence threshold re- quiring an interview. 8 employees involved Eight employees who worked for CSC at the Bowden Institution in Bowden, Alta., took leaves for vari- ous issues or conditions. Bonita Ebelher said the reasons for her absences were between her and her doctor and the leave she took was permitted under the collective agreement. She was put on an at- tendance management plan where she was required to certify all sick leave within a reasonable time or it would be without pay. Ron Harrison had a daughter with a serious mental illness and another with a heart condition so he sometimes had to leave work to attend to them. He was informed he had gone over the NAMP threshold and his attendance was to be monitored for any patterns of absences. Kendra Haldorson took 37.5 hours of family responsibility leave when her daughter required emer- gency surgery. When this was add- ed to 87.5 hours of sick leave she had used, she crossed the NAMP threshold, but the deputy warden determined no further action was necessary. Candice Westbury exceeded the NAMP threshold due to a negative sick leave balance from a seven-month disability leave in 2010. e deputy warden advised Westbury her attendance would be monitored. Gallagher Keough broke his foot and had surgery, requiring an eight-week absence — all certified sick leave. He then was off for an- other month for additional surgery. He received a letter indicating the meeting was documented under the NAMP, which would remain in his file for one year. Randi Bodnar used family re- sponsibility leave and vacation leave to care for her mother. She was told her attendance would be moni- tored and a letter put in her file. Two other employees — Man- delle Mitchell-Himler and Kevin Williams — received letters un- der the NAMP and were required to meet with the deputy warden to discuss their exceeding the threshold for family leave and sick leave. Mitchell-Himler's supervisor said more than half her leave was certified sick leave and much of the rest was family- related leave. Williams' supervi- sor 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 attendance monitoring for three months while Williams required no fur- ther action, though the letter was placed in his file. e eight employees grieved the NAMP, arguing it discriminated against them based on family status by not differentiating family leave from sick leave. ey claimed the policy systemically discriminated against them by using family leave as part of the threshold calculation and failing to accommodate family status needs. CSC and the deputy warden argued the NAMP was only sup- posed to ensure CSC was man- aging attendance 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 moni- tored attendance weren't placed at a disadvantage. Good reason, bad application e board found the purpose of the NAMP was "laudable" but had problems with the way it was car- ried out. Calculating a threshold of absences for entry into the NAMP by including absences authorized under the collective agreement and those "directly attributable to the prohibited grounds of dis- crimination of disability and fam- ily status" did not take into account workers' personal circumstances and therefore was discriminatory on its face, said the board. "The threshold developed by the employer is based largely on sick leave usage combined with the use of family-related leave," it said. "However, it does not distin- guish between the uses of sick leave related to a disability and includes time used by employees related to their family status without any pro- vision for evaluating the threshold on a case-by-case basis." Family-related leave was only available under the collective agreement for employees with particular family situations, said the board. erefore, it should be obvious an employee who uses it qualifies for family status obliga- tions and shouldn't be penalized, which is essentially what CSC was doing. e board also found CSC didn't question the sick leave usage of the employees, but they were still required to meet with the deputy warden, had records put in their files, and had their attendance monitored. Even if CSC didn't consider this disciplinary, it was differential treatment based on disability- and family-related leave. CSC's "arbitrary and rigid ap- proach and the removal of any discretion at the supervisory level to prevent escalation to the NAMP level left no room for an assess- ment on an individual basis," said the board. The NAMP discriminated against the employees based on family status and disability, found the board. However, none of the employees suffered much in terms of pain and suffering, it said, so it only awarded dam- ages of $250 for discrimination and $500 for CSC's "wilful and reckless disregard" of its human rights obligations under the Ca- nadian Human Rights Act and the collective agreement — for a total of $750 each. For more information see: •Bodnar v. Treasury Board (Cor- rectional Service of Canada), 2016 CarswellNat 4367 (Can. Pub. Ser- vice Lab. Rel. & Emp. Bd.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Sick leave and family-related leave were used to calculate if a worker crossed the absence threshold, requiring an interview.

• Cover