Once the ASP program manual was approved, an all-ministry implementation team was established to disseminate information about the program. In a three-month period, 2600 managers were trained in full-day sessions. It was then the responsibility of the managers to inform their employees about the program. There was also training for human resources personnel and the chief administrative officers of each ministry. In some cases, when requested, an informational meeting was held with the local ERC and senior management committees. The implementation team offered a training session for union representatives, but that offer was not accepted. At the time of the hearing, various training sessions regarding ASP continue to be offered.

6. Fresh Start

According to the ASP manual, "[m]ost employee will be given a ‘fresh start’ when the program is first implemented." A manager, however, could request an exemption to the "fresh start" approach if an employee was under attendance review at the time of the program’s implementation, which, if approved, would have the employee start at level three of the ASP. A set of criteria, set out in Appendix A of the manual, was established to determine if an exemption should be made, based on whether the principles of the ASP program had already been applied in managing the employee’s attendance.

The manual further states as follows:

Notwithstanding the above, an exemption will be given when any of the following circumstances apply:

* an attendance support program modeled on the corporate program is in place in the ministry.

According to Gail Snoddon, Assistant Coordinator, Human Resources Branch, with the Ministry of Solicitor General and Correctional Services, employees in correctional services who were in the ministry’s Attendance Enhancement Program (AEP) were automatically moved into the ASP because the AEP was similar to the AEP and met the guidelines for an exemption. In a memo to all managers on October 6, 1997, managers were advised that employees at level one of the AEP were moved into level one of ASP. Employees at levels two and three were moved into level two of the ASP and employees at levels four and five were placed into level three of the ASP. No individual determinations were made.

According to Ms. Hopps, this blanket approach was incorrect. She testified that if a ministry had an existing attendance program which satisfied the criteria in Appendix A, each individual’s situation had to be considered and a determination made whether, in fact, what had been done was according to the plan. In her view, there was a need for individualized determinations.

7. Confidentiality of Health Information

The ASP manual recognizes the confidentiality of the health information required under the program. Managers are directed to "safeguard the confidentiality of information..." and to "maintain confidentiality."

The HIP manual more fully reviews "document management" of employee health information, although the ministries are responsible for establishing their own document management procedures, none of which were put into evidence. The HIP manual sets out minimum standards which the ministries must follow, and states, in pertinent part, as follows:

At a minimum the following must be developed:

* specific written procedures which address:

- security and confidentiality of health information including both written and electronic records)

- collection, use, disclosure, access, retention, maintenance, disposal, transfer of information, and accountability of health information as required by the health information program

* a process to review and revise these procedures as necessary

* a process to make procedures available to employees

An employee’s health information should be kept separate from other general human resources information.

It also sets out "best practices" which encourages ministries to introduce a health information envelope:

We encourage ministries to introduce a health information envelope for employees. All health information obtained through the health information program should be stored in them. Corporate branch/unit human resources file would include the envelope. The envelope should be sealed and access to it restricted through a designated "custodian". The person seeking access would be required to sign the envelope stating why and what they are accessing.

The manual further states, as an example, that if a ministry’s practice is to retain health information on the corporate personnel file, it "should be kept separate from other personnel information, preferably in a separate sealed health information envelope in the overall file." Likewise, if the ministry practice is to retain health information in a branch/section human resources file, "it must be maintained in a separate sealed health information envelope." Whether or not these recommendations have been followed by the Ministry is not in the record. The "best practices" approach, however, was covered in the ASP training for managers.

Ms. Hopps testified that there is no prohibition against placing the employees’ health information, involvement in the ASP and the documented formal and informal meetings under the ASP in the employees’ corporate file, although she stated that it should be in a separate envelope. She further stated that while an employee’s attendance record may be considered in a job competition or other opportunities, the employee’s involvement in the program and any employment accommodations needed would not be relevant and should not be considered. There is, however, no clear statement to this effect in either the ASP or HIP manuals.

In at least one case, an employee was informed, by letter, that he was not selected for a "developmental opportunity" due to his "involvement in the Attendance Support Program." When this was discovered by MBS, the manager involved was informed that "[t]he fact that an employee is involved in the Attendance Support Program cannot be used against the employee when they apply for developmental opportunities (or competitions)" and was directed to delete the letter from the institution’s files.

8. References to Discipline

The ASP manual repeatedly states that it deals with "innocent absenteeism" not "culpable absenteeism", which is to be dealt with through the disciplinary process. In the manager’s guide section of the manual, managers are cautioned: "Note: this is not a disciplinary tool, so be careful not to give this impression." The Q & A section for managers also states that ASP is not part of a discipline process: "The program helps to manage innocent absenteeism and is not a disciplinary action. Any absences that are suspect and have been determined to be abuse should be treated through the discipline process." (emphasis in original)

9. Medical Certificates and Medical Examinations

Under the ASP, the employer is responsible for paying for the medical certificates, the completion of the Request for Employee Health Information forms and any required medical examinations required under the program.

DECISION

The Union does not challenge the Employer’s right to establish an attendance program or to terminate an employee for innocent absenteeism, provided the arbitral standards are met and the employer’s action is consistent with the Ontario Human Rights Code. It does, however, assert that the attendance program must be consistent with the parties’ collective agreement, consistent with the law of innocent absenteeism, consistent with relevant legislation and, overall, must be a reasonable exercise of management’s discretion. It is the Union’s submission that the ASP fails to meet these requirements.

As noted at the outset, the policy grievance regarding the ASP asserts that the program is "in whole or part arbitrary, discriminatory and unfair and violates the Collective Agreement, including but not limited to Articles 2.1, 3.1, 9.1 and 44, and violates the Ontario Human Rights Code... and violates the Employer’s own Equal Opportunity Operating Policy." The policy grievance regarding the AEP asserts that "the employer has implemented the new Attendance Enhancement Program in a manner which is arbitrary, inconsistent and discriminatory."

Below I will address each argument that the Union has raised, along with the Employer’s response, and my determination.

1. Is the ASP, as a whole, disciplinary in contravention of the collective agreement?

One of the Union’s main arguments is that the ASP, as a whole, is disciplinary in nature and thus violates the collective agreement which only permits discipline for "just cause."

The Union asserts that the key aspects of the ASP, individually and even more so collectively, establish that the program is disciplinary in nature. Specifically, those aspects are the progressive nature of the program - levels one, two and three, with increasing intervention at each level; the use of warnings and counseling which are intended to support future decisions, including termination; and goal setting, which assumes an employee’s attendance is within the employee’s control. In the Union’s view, the ASP is premised entirely on the view that employee absence is controllable by the employee and subject to correction which is a basic tenet of progressive discipline. It asserts that true innocent absenteeism of the type experienced by the Union’s witnesses - cerebral palsy, migraines, miscarriage - is not amenable to correction. It contends that the required goal setting combined with warnings and sanctions clearly renders the program disciplinary in nature, and accordingly, violates the requirement that the employer must have "just cause" to discipline an employee.

In support of its contention, the Union cites to a number of cases and articles. It refers to Brown & Beatty, Canadian Labour Arbitration, at 7:4210, regarding the nature of disciplinary sanctions, which states that "a written warning, which forms part of the grievor’s employment record, which is intended to induce her to alter her behaviour and which may have a prejudicial effect on her position in future grievance proceedings, will likely be regarded as being disciplinary in nature." The Union submits that the warnings regarding absenteeism in the ASP squarely meet this definition.

In Re Goodyear Canada Inc. and United Rubber Workers, Local 232 (1981), 30 L.A.C. (2d) 100 (Kennedy), a case cited by the Union, an employee was given a two day suspension with pay as part of an attendance management program entitled "Non-punitive Absenteeism Program." The program involved a series of formal interviews with the foreman, division superintendent and personnel manager, which included a warning that if the employee’s attendance continued to be unsatisfactory disciplinary action would follow. The two-day suspension generally followed the meeting with the personnel manager, and after that, the policy stated, in effect, that further absences without an "ironclad reason will result in discharge." The testimony revealed that the company’s witnesses "expressed the view that it was within the grievor’s power to improve his [attendance] record." (30 L.A.C. (2d) at 102). The focus of management, according to the arbitrator, was "solely on the number of absences" with "little or no consideration actually given to the reasons for the particular absences." (Id. at 104). On these facts, the arbitrator determined that the suspension was disciplinary in nature, at pp. 103-104:

The Company’s programme would appear to be non-punitive in the sense that there is no loss of wages or benefits to an employee from its implementation. It is, however, clearly aimed at uncovering causes of absenteeism and in correcting those causes where possible and, in that sense, I feel that the programme must clearly be categorized as being one of a disciplinary nature in the sense of being a structure of corrective actions which are taken to resolve a problem. ... It is clear that at all stages of the interviews involving this grievor management was of the view that they were dealing with a case wherein it was within the power of the grievor to improve his record and to correct the condition of which the company complained and it is implicit in the evidence that the company did not consider that the situation was one purely of innocent absenteeism.

The arbitrator further stated at p.105 that if the legitimacy of the grievor’s absences was conceded by the company, "there would appear to be no useful purpose served by the suspension with pay and the matter should be reviewed to determine whether the abitral tests for non-disciplinary discharge have been met."

The Union also cites Re Champion Road Machinery Ltd. and Gearco Ltd. and International Association of Machinist & Aerospace Workers, Local 1863 (1992), 25 L.A.C. (4th) 1 (Verity). In that case, the employer developed an "Attendance Control Program" which involved a progressive five-step process: a verbal counseling session between the employee and his supervisor and three separate counseling interviews prior to "automatic discharge" at the final step. Following each counseling session at steps 2, 3 and 4, letters were issued specifying the unsatisfactory attendance and requesting regular attendance in the future. The third such letter, at step 4, was to constitute "final notice" with the warning that "any further occasions...of unsatisfactory attendance" will result in "termination." The policy combined absences for innocent and culpable reasons and also included incidents of lateness.

The employer took the position that the plan was non-disciplinary while the union contended that that the program was an attempt to circumvent the "just cause" provision in the collective agreement. The arbitrator found the program to be disciplinary in nature. He concluded at p. 9:

I am satisfied that the program has all of the hallmarks of a disciplinary system whereby increasingly threatening warning letters are given to employees after each of three counseling interviews. Undoubtedly, these warning letters will be relied upon to support termination at the fifth step of the program. In other words, the employer’s position appears to be that if an employee is unable to "correct" his attendance pattern after four occasions of absence, he is terminated. The problem is that while culpable conduct is correctable, generally the same cannot be said for non-culpable or blameless absenteeism. On the evidence before me, I am satisfied that the policy, which the employer labels as "non-disciplinary", has disciplinary consequences.

In the Union’s submission, the ASP clearly is premised on the view that employee’s attendance is correctable. It notes that the fact that "highly motivated" employees are deemed to fall into the low-risk category for absenteeism further indicates that motive, which is controllable, is a central factor in the plan. The Union contends that the plan’s goal-setting requirement, combined with the progressive levels, warnings and the possibility of discharge, can only lead to the conclusion that the program is disciplinary in nature.,

In response, the Employer asserts that the ASP is not disciplinary in nature. It submits that the program specifically deals with innocent absenteeism, not culpable absenteeism, and that the goal is to assist employees and enable them to attend work more regularly. It further asserts that the fact that the program has three levels with increasing intervention does not render it disciplinary. Instead, it submits that the progression properly denotes the increasing seriousness of the situation. Nor, in its view, does the ASP provide for sanctions. It includes no suspensions and the warning letters, it asserts, are not disciplinary. It asserts that such notice is, in fact, required by the arbitral jurisprudence before an employee may be terminated for innocent absenteeism. In the Employer’s view, the fact that the program is premised on the notion that some absenteeism, with appropriate assistance and employment accommodation, may be reduced does not render the program disciplinary. Goal setting, it argues, is individualized, taking into account the specific needs and circumstances of the individual and ensures managers address the individual situation. Finally, it submits that the description of "highly motivated" employees as falling into the low-risk category was used only in terms of establishing the corporate bench marks, nothing more.

In support of its contentions, the Employer cites to a number of cases, including several GSB cases. In OPSEU (Selkirk) and Ministry of Correctional Services (1984), GSB No. 206/84 (Roberts, Vice-Chair), the grievance involved "a letter which was issued to [the grievor] after a corrective interview regarding his attendance." The letter noted the number of absences, stated that poor attendance was detrimental to an employee’s record and caused disruption to the institution, and warned that "failure to improve could result in further courses of action being taken." The employer raised a preliminary objection to the jurisdiction of the board on the basis that the letter was not "disciplinary" in nature and that the board, therefore, was without jurisdiction.

The Board, in determining that the letter was not disciplinary in nature, noted that the letter was not intended to be discipline and did not form any part of the grievor’s disciplinary record. The employer also assured the board that in assessing discipline against the grievor in the future, no reference would be made to this letter. The board relied on the excerpt from Brown & Beatty, Canadian Labour Arbitration, regarding the nature of disciplinary sanctions, as well as prior GSB cases which determined that a letter warning an employee regarding innocent absenteeism was non-disciplinary in nature, and determined that "[i]n order to constitute discipline, a written warning must, inter alia, be likely to have a predicial (sic) effect on the position of the grievor in future grievance proceedings." Since the employer would not be relying on the letter is assessing discipline against the grievor in the future, the board determined that it would have no prejudicial effect. The board therefore concluded that it had no jurisdiction to deal with the merits of the grievance.

In OPSEU (Moody) and Ministry of Correctional Services (1991), GSB No. 2646/90, 2647/90 (Kaplan, Vice-Chair), the board determined that an Attendance Review, Step 3 letter, which was issued to the grievor as part of the ministry’s attendance review process was not disciplinary in nature. The board relied on that fact that the letter was not part of his disciplinary record and would not be used in any future disciplinary matter. It also relied on prior GSB decisions "that letters such as the one at issue in the instant case do not constitute discipline." The board concluded at p. 10 that "[n]otwithstanding the fact that termination may result at some stage, we are not persuaded that the letter the grievor has received is disciplinary." While the board agreed with the earlier jurisprudence, it also felt bound to follow it in the absence of "exceptional circumstances", citing Blake et al. and Toronto Area Transit Operating Authority,(1988), GSB No. 1276/87 (Shime, Chair), which held that that only in "exceptional circumstances" may a panel of the GSB review another panel’s decision on an issue.

In the Employer’s submission, I am equally bound to follow the prior jurisprudence of the GSB on this issue and conclude that the warnings contemplated by the ASP are not disciplinary in nature.

In further support of its position, the Employer cites to Re Falconbridge Nickel Mines Ltd. and Sudbury Mine, Mill & Smelter Workers’ Union, Local 598 (1982), 4 L.A.C. (3d) 274 (Saltman). In that case, the fact that a warning about excessive innocent absenteeism was prospective in nature - setting out standards and possible consequences for the future - and could not be used to support subsequent discipline was found to render the warning non-disciplinary. This was true even though the warning was "heavy-handed". In the board’s view, moreover, a warning was required before an employer could discharge an employee for innocent absenteeism. As it concluded at p. 278: "[W]hatever his record of absenteeism, it simply would be unfair to terminate the employee without bringing to his attention the employer’s concerns in this regard and giving the employee a chance to improve."

The Employer also cites to Re Royal Alexandra Hospital and United Nurses of Alberta, Local 33 (1990), 10 L.A.C. (4th) 173 (Ponak). In that case, the union argued that letters issued as part of the hospital’s absenteeism program, and the program itself, were disciplinary because the primary objective of the program was the alteration of employee behaviour. The program’s stated objective was "to reduce short term controllable absenteeism" and therefore, in the Union’s view, a matter within the control of the employee. The letters, the union argued, were aimed at inducing the preferred behaviour - namely, to reduce or control the absenteeism. Further, the letters were placed in the employees’ personnel file which, in the union’s submission, further enhanced their corrective/disciplinary nature.

The employer argued that the letters were not intended to be disciplinary, but simply an attempt to communicate to employees that a problem might exist with their level of absenteeism and would not be used as a basis for future disciplinary action. It also argued that the use of the words "controllable absenteeism" in the statement of objectives did not render the program disciplinary. In the employer’s submission, it had no choice, based on the arbitral jurisprudence regarding innocent absenteeism, but to put the employee on notice of the employer’s concerns and to not allow the employee to be lulled into a false sense of security. Such notice, it argued, was a condition precedent to dismissal for any form of non-culpable conduct.

The board ruled that the letters and the program could not properly be characterized as disciplinary. It stated at p. 189:

[T]he Board agrees with the employer that the basic purpose of the letters was to communicate the employer’s concern that a problem of absenteeism might exist. The fact that such communication might well be seen by the employee receiving the letter as unpleasant news does not make the letter (nor the policy) coercive. The Board also accepts that reference to "controllable absenteeism" does not automatically imply discipline.

The board then stated that its conclusion that the letters warning the grievors of their absenteeism records are not disciplinary "is supported, in the Board’s view, by almost all reported cases." It continued, at pp. 190-191:

A review of these cases... indicates that arbitrators: (1) do not consider absenteeism monitoring programmes of the kind before this Board (assuming they do not contain the elements found in St. Paul’s Hospital) as disciplinary in nature; (2) do not consider letters of warning issued pursuant to such policies, even if "heavy handed"... as disciplinary letters, and (3) indeed require such warning letters be explicitly given to employees who may be excessively, though innocently, absent if dismissal is to ultimately occur.

In the St. Paul’s Hospital case referred to by the board, the attendance program included a suspension step and intermingled innocent absenteeism and abuse of sick leave, factors which, the Employer points out, are not contained in the ASP.

Two other cases cited by the Employer also dealt with the argument that "controllable absence" rendered the plan disciplinary. In Re Toronto Electric Commissioners and Canadian Union of Public Employees, Local 1 (1986), 25 L.A.C. (3d) 39(Kruger), the union argued that the warning letters in the employer’s absenteeism program implied that employees can and should take steps to reduce absenteeism which, in its view, suggested that absenteeism was avoidable and therefore subject to discipline. The arbitrator rejected that view, stating at p. 51 that while absence for illness is nonculpable, "it is also true that in some cases employees can take steps to reduce the incidence of absence." He continued: "There are instances where employees are not so ill that they must stay off work. There are other cases where employees can reduce absenteeism by seeking and following medical or other professional advice."

Similarly, in Re Coquitlam (City) and International Assn of Firefighters, Local 1782 [1977] B.C.C.A.A.A. No. 499 (Hickling)(Quicklaw), the union asserted that an attendance program was disciplinary because it assumed absences could be controlled. The arbitrator found that this assumption did not render the plan disciplinary. He stated at p. 40: "Absenteeism due to illness may be controllable to some extent. A change in lifestyle could well have an impact on the incidence of sickness or absenteeism."

The arbitrator in that case also determined that a "warning" regarding potential dismissal was "not coercive" since employers are required to put employees on notice that continued non-culpable conduct may lead to dismissal. The mere fact that the letters and warnings contained unpleasant news did not render them coercive or disciplinary.

Instead, his examination of the case law revealed a number of factors to consider in determining whether an attendance plan was disciplinary: how closely the steps parallel a progressive disciplinary regime; whether culpable and non-culpable absenteeism are mixed; the tone of the warning letters and whether they may be used to support later discipline; and the degree of discretion vested in management. In his view at p. 42, "[a] policy that leads inexorably to dismissal or suspension is much more likely to be characterized as disciplinary than one that permits due consideration of the circumstances of the individual and vests discretionary power in the supervisor."

After careful consideration, it is my view, based on the facts of this case and the case law cited by the parties, that the ASP, as a whole, is not disciplinary in nature. I conclude that the characteristics of the program, the required goal-setting, progressive levels, warnings and the potential for discharge, independently or in combination, do not render the plan disciplinary.

a. Goal Setting.

The importance of goal-setting to the operation of the ASP cannot be overstated. Simply put, it is crucial. Meeting the attendance goals determines whether an employee exits the program or moves to the higher levels.

Certainly, as the Union contends, the setting of attendance goals implies that some employee absences are controllable. Indeed, a major premise of the program is that some absenteeism, with appropriate assistance and accommodation, may be reduced or "controlled". This does not, however, in my view, render the plan disciplinary. For example, if an employee is often absent because her workstation causes back problems, that situation may be alleviated through new equipment or modification of duties. If an employee misses work due to an undiagnosed ailment, that situation may improve by seeking and following medical attention. Other employment accommodations, or a change in lifestyle, may also reduce employee absences. The program is designed to identify those situations so that appropriate assistance and accommodation may be provided, with the goal of reducing absenteeism.

An employer, as the cases on this topic uniformly recognize, has a legitimate interest in reducing absenteeism. It need not wait until an employee’s attendance is excessive, but may take proactive steps to reduce absenteeism before it becomes excessive.

Yet because of the significance of the attendance goals, great care must be taken in how they are described in the program manual and how they are implemented. The attendance goals must be realistically set, or the employee is, in effect, set up to fail. My review of the manual indicates there are a number of mixed messages contained in it. At times, the manual states that goal-setting is "individualized" and "recognizes the employee’s needs." But at other times, the manual appears to tie attendance goals to the ministry average. The one numerical example in the chart uses the ministry threshold to establish the individual goal. While the manual repeatedly refers to employment accommodation needs, there is no explicit reference to a manager’s ability to set attendance goals which exceed the ministry average. The brief reference to a "personal absenteeism threshold" is not sufficient. Indeed, in my view, that reference is not related to an absenteeism "goal" at all, but refers to establishing a personal absenteeism threshold as an accommodation for an employee who cannot meet the regular ministry threshold. Without such an accommodation, an employee, who, due to a disability, cannot meet the regular ministry threshold will be constantly re-entering the program which requires re-entry if the ministry threshold is surpassed. It appears from the manual that the terms "threshold" and "goals" are terms of art and are not interchangeable Consequently, the reference to a "personal absenteeism threshold" does not deal with establishing attendance "goals" which exceed the ministry average.

I have no doubt that the program allows for an attendance goal which exceeds the ministry average, and indeed, allows for no numerical goal at all. In Scott Allardyce’s case, it appears that he was given a goal which exceeded the ministry threshold But the program, as outlined in the manual, is simply not clear on this. Given the absolutely crucial role that goal setting plays in the ASP, it is imperative that the ability to set an attendance goal, when necessary, which is not tied to the ministry average, is made more explicit.

Likewise, for the same reasons, it is equally important that a manager’s ability to reset the goal, based on new medical information, is made more explicit. The Q & A from the Ministry of the Attorney General is clear on this, but the manual itself is not.

b. Progressive Levels and the Warnings

There is nothing, per se, improper about having progressive levels in an attendance management program. Most, if not all, such plans have progressive levels. The progression, as the Employer asserts, indicates that the employer has increasingly serious concerns about an employee’s attendance, but it is not the same as progressive discipline. There are no increasing sanctions, no suspensions, and although discharge for innocent absenteeism may eventually result, that result is far from automatic under the ASP. There is a great deal of discretion built into the ASP, at each level, and alternatives other than discharge, such as reassignment, job modification, demotion, are possible.

Again, however, some caution is required. The minimum time that an employee may complete the program is 15 months (six months in level one, six months in level two and three months in level three). There are places in the manual, however, as well as in the manager’s training materials which indicate that the maximum time is 24 months. According to Ms. Hopps, further extensions in level three, indeed, indefinite extensions, are possible. This is not clear in the manual. While the words "one-time" extension and "final" extension were removed from the January 1999 version of the manual, they were replaced by the words "an extension" with no reference to the possibility of additional ones. This needs to be further clarified.

In addition, caution must be exercised that the time frames for the progressive levels, combined with the attendance goals, do not preclude a sufficient period to assess and address an individual’s situation. There would appear to be some risk because the program only allows one extension at level one and no extensions at level two Although between 15 to 24 months may, as the program asserts, "provide sufficient time to manage attendance issues and address employment accommodation needs" as well as to "ensure" that "informed decisions about an employee’s’ ability to meet their job requirements" may be made, that amount of time may not always be sufficient. If an employee’s medical condition is in flux, or is difficult to diagnose, or new complications arise, additional time may be required.

In terms of warnings, at level two and three, an employee is "advised" or "warned" that failure to meet attendance objectives in level three may jeopardize his or her employment because of continued inability to fulfill his or her employment obligations and regularly attend work." The case law, including prior GSB cases, clearly establish that this type of warning is not disciplinary, and in fact, is required before an employee may be terminated for innocent absenteeism. OPSEU (Russell Selkirk), supra; OPSEU (Moody), supra. As Arbitrator Saltman stated in Re Falconbrigde Nickel Mines, supra, at p.278, an employer cannot terminate an employee for innocent absenteeism "without warning him first that his job is in jeopardy." Such a warning communicates to the employee the employer’s concern about their absenteeism and the fact that their employment is in jeopardy. As she concluded: "[I]t simply would be unfair to terminate the employee without bringing to his attention the employer’s concerns in this regard and giving the employee a chance to improve." The fact that the warnings might well be seen by the employee to contain distressing news does not make the warning disciplinary. The tone of the warnings in the ASP, moreover, are factual and "not increasingly threatening."

The warnings, however, cannot subsequently be used against the employee in any future disciplinary proceeding. They may only be relied upon in subsequent proceedings dealing with the grievor’s termination for innocent absenteeism to show that the employee had been warned that his attendance was unacceptable.

In my view, moreover, the ASP does not change the law on innocent absenteeism, or purport to do so. All of the normal legal tests for termination on the basis of innocent absenteeism must still be met, including any requirements imposed by the Ontario Human Rights Code. There must be excessive, as opposed to just above-average absenteeism, and there must be no reasonable prognosis for any future improvement in that attendance. In addition, under the Code, if an employee suffers from a handicap or disability, the employer must if it can accommodate the employee to the point of undue hardship. If it cannot, termination is permissible under the doctrine of innocent absenteeism. See, e.g., Re Corporation of the City of Oshawa and Canadian Union of Public Employees, Local 250 (1996), 56 L.A.C. (4th) 335 (Brandt); Re AirBC Ltd. and Canadian Airline Dispatchers Association (1995), 50 L.A.C. (4th) 93 (McPhilips). The ASP manual, which sets out the standards for innocent absenteeism, appear to reflect these requirements.

The ASP is significantly different than the attendance programs found to be disciplinary in the cases cited by the Union. In Re Goodyear Canada Inc. and United Rubber Workers, Local 232, supra, the attendance program included a two-day suspension with pay which, in the arbitrator’s view, could serve "no useful purpose", and the employer gave no consideration to the reasons for the absences, just the number of absences. The ASP contains no provision for suspensions and provides for consideration of the reasons for the absence. In Re City of Scarborough Public Utilities Commission and Utility Workers of Canada, Union 1, Units 1& 2 (1992), 35 L.A.C.(4th) 1 (Haefling), the attendance program explicitly stated that if there was no attendance improvement after six months, "[t]he supervisor will establish attendance targets for the next quarter and if they are not met the employee may be subject to disciplinary action." If there was no medical problem identified, attendance objectives were to be set and if not met, "disciplinary action may be taken". In light of this, the board of arbitration concluded that the policy had "at least potentially, disciplinary consequences for employees." In contrast, the ASP repeatedly states that the program is not disciplinary and cautions managers not to treat it as such. In Re Champion Road Machinery Ltd., supra, the program combined culpable and nonculpable absences, as well as incidents of lateness, "increasingly threatening warning letters" based solely on the number of absences without any regard to the reason for the absence, and discharge was automatic at the fifth level. None of those features are contained in the ASP.

By its terms, the ASP is stated to be non-disciplinary, and deals exclusively with innocent absenteeism. Culpable absences - defined as misuse sick leave - is dealt with through the disciplinary process. The two type of absences are not intertwined, nor does the program involve incidents of lateness. The reasons for the absences are considered, employment accommodation is required and discharge is far from automatic. As in City of Coquitlam, supra at p. 22, the program vests sufficient discretion "to develop an action plan that is tailored to an individual’s situation."

It is very easy, however, to understand how the ASP may be viewed by employees as disciplinary. Their attendance is being reviewed quarterly and if they exceed the ministry threshold, they enter the ASP, subject to its meetings, formal and informal, attendance goals and, for some, progression through the levels which eventually may lead, in certain circumstances, to termination. All of the employees who testified were concerned and upset at their inclusion in the program. This view is identical to the views expressed by employees in the cited cases. In Re Royal Alexander Hospital and United Nurses of Alberta, Local 33, supra, an employee who was subject to the employer’s attendance program testified that she was upset, felt harassed, and considered being placed on the program as punishment. Legally, however, the board of arbitration found that the program was not disciplinary.

Similarly, in Hamilton Street Railway, an unreported decision of Professor Barton, quoted in Scarborough Fire Fights Association, Local 626 and City of Scarborough, unreported decision of Arbitrator Mitchnick dated July 2, 1995, at p. 38, Professor Barton noted that "...the bottom line was that people felt that they were being watched and that they would be punished or disciplined if they missed too much work." The attendance program there measured employees against an industry standard each quarter, and if that standard was surpassed, there was a series of escalating interviews, at the end of which discharge could result. Professor Barton, however, concluded that the program was not disciplinary since it applied only to nonculpable absenteeism, it was not applied mechanically, efforts were made to accommodate employee’s situations and discharge was not automatic.

The same is true here. Thus, despite the very real sentiments of the employees involved, the question before this board is a legal one - whether the plan has sufficient disciplinary overtones that it has become, in fact, a system of discipline. For all the reasons set forth above, I conclude that the policy cannot be equated with discipline. While there will undoubtedly be many implementation issues, the policy itself is not disciplinary in nature. It is bona fide effort to deal with absenteeism. It does not violate the just cause requirement in the collective agreement.

2. Does the ASP violate the Ontario Human Rights Code in violation of the collective agreement?

Article 3.1 of the collective agreement provides as follows:

ARTICLE 3 - NO DISCRIMINATION/EMPLOYMENT EQUITY

3.1 There shall be nondiscrimination practiced by reasons of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

The Union asserts that the ASP violates the Human Rights Code because it fails to ensure that employment accommodation will take place and because it includes employees in the program who cannot meet the ministry threshold solely because of their handicap or disability, subjecting them to all the aspects of the program.

a. Inclusion of employees with disabilities in the ASP.

There is no question that the ASP includes all employees who exceed the ministry absenteeism threshold, including those whose absences are caused by their disability. Entry is automatic upon surpassing the threshold. Thereafter, individual circumstances may be considered, but entry is automatic.

The Union submits that this automatic entry discriminates against employees with disabilities. It also submits that holding them to attendance goals when their absences are not within their ability to control also constitutes discrimination. In support of its position, the Union cites to Re Ontario Human Rights Commission et al. and Gaines Pet Food Corp. et al.[1993]16 O.R.(3d) 290 (Ont. Div. Ct.), in which the Court found that a requirement that an employee suffering from cancer to "maintain a level of attendance equal to or better than the average for the hourly rated employees in the plant" as a condition of employment violated the Human Rights Code. Accordingly, her discharge for failing to fulfill that requirement was due her disability and violated the Code. The Union also relies on Re Corporation of City of Stratford and Canadian Union of Public Employee, Local 197 (1990), 13 L.A.C. (4th) 1 (Marszewski), in which application of an automatic termination clause in a collective agreement after an 18-month absence due to injury was found to be discriminatory under the Code.

In response, the Employer contends that it is not discriminatory for the ASP to include employees whose disability or handicap causes them to exceed the ministry absenteeism threshold. It submits that handicapped employees are entitled to the benefits of the program - employment accommodation and assistance, counseling and warnings - and that to include them does not violate the Code or the collective agreement.

In support of its position, the Employer cites to Re AirBC Ltd. and Canadian Airline Dispatchers Association, supra, in which the discharge of an employee for innocent absenteeism was upheld, even though the cause of her excessive absenteeism was the result of a medical disability.

The Employer also cites to Re Corporation of the City of Oshawa and Canadian Union of Public Employees, Local 250, supra. In that case, at issue was whether "counseling" letters given to an employee under an attendance control program constituted direct and/or constructive discrimination on the basis of handicap in violation of the Code and the collective agreement, which obliged each party to act in a manner that is not contrary to the Code. The majority (approximately 20) of the employee’s 33 days of absence was due to compensable work-related injuries. The majority of the board of arbitration concluded that the counseling letters were not disciplinary, and that issuing them to the grievor did not violate the Code. In its view, the duty to accommodate did not attach until the point of termination for innocent absenteeism.

It is my view that the inclusion of employees whose absences are due to handicap or disability within the ASP is not discriminatory under the Code or the collective agreement. This determination is based on the fact that inclusion in the program, by itself, is not disciplinary, nor does it impose a "burden, obligation or disadvantage" which is not imposed on others. Re Corporation of the City of Oshawa, supra, quoting from Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 (SCC), at p. 174. Instead, it starts a process for taking up the issue of attendance with the employee. Thereafter, in light of the employee’s disability, the duty to accommodate applies. In that regard, I disagree with the conclusion of the board of arbitration in Re Corporation of the City of Oshawa, supra, that the duty to accommodate does not attach prior to the point of termination for innocent absenteeism. It attaches far earlier. But an employer’s interest in regular attendance is not lessened by the fact that an employee’s absences are caused by a disability. The interest is the same. The difference is that the employer has a duty to accommodate a disabled employee to the point of undue hardship. The ASP, however, recognizes this obligation. Accordingly, because inclusion in the program merely starts a process for taking up the issue of attendance with the employee, I do not find that automatic inclusion of handicapped employees who exceed the ministry threshold to constitute either direct or constructive discrimination. Thereafter, however, individualized treatment, assistance and accommodation are required.

In so concluding, I find Gaines Pet Foods Corp. supra, to be distinguishable. In that case, the condition of maintaining the average plant absenteeism was applied to no one else and noncompliance resulted in automatic discharge. Those facts were critical to the court’s analysis and are not true in the ASP. Under the ASP, the ministry absenteeism threshold applies to all employees and once in the program, there is flexibility to address an employee’s individual situation.. Discharge is by no means automatic. For the same reason, the decision in Re Corporation of the City of Stratford, supra, is also distinguishable.

Where I believe the ASP, on its face, arguably falls short of the Code is in its treatment of handicapped employees during the monitoring phase - the 24 months that follow exit from the program. Throughout the ASP manual, it is stated that an employee who exits the program must maintain the ministry absenteeism threshold for 24 months or they re-enter the program at the level from which they exited. In the manual, there is no exception to this, although there is a brief reference in the revised January 1999 manual to a "personal absenteeism threshold" as a possible accommodation in one of the charts regarding level 3. The issue was clearly addressed, however, in a 1998 Q & A from the Ministry of the Attorney General. That document states as follows:

Q. A manager and employee met for a Level One Attendance Support Program Interview, and based on the available medical information, an attendance improvement goal of 25 days was set for the employee. Over the six month attendance improvement period the employee met the goal. In fact, the employee was absent from work due to health reasons for only 18 days which is still above the ministry threshold. What course of action should the manager take now?

A. In this situation the employee has met their goal under Level One of the ASP and should be moved out of the level and into the attendance monitoring phase for the next two years, as required by the Attendance Support Program.

The employee’s attendance during the attendance improvement period, as well as any other relevant information should be provided through the employee, to the medical practitioner to enable him/her to provide an objective prognosis and clarify the employee’s restrictions and limitations. The manager can then make a suitable decision re: accommodating the employee and whether a personalized absenteeism threshold needs to be established.

If the employee is unable to meet the ministry absenteeism threshold, the employee’s personalized threshold is treated as an additional employment accommodation. The manager, following consultation with the HRC and the Ministry Program Liaison, will require the medical practitioner, through the Health Information Program, to provide sufficient information to support the need for such an accommodation.

From this document it is clear that if an employee, due to health reasons, cannot maintain the ministry absenteeism threshold, a personalized absenteeism threshold may need to be established as an additional employment accommodation. In this way, employees like Scott Allardyce, who can perform the essential duties of their job but cannot meet the ministry absenteeism threshold, may eventually escape the program. Without it, employees whose disabilities prevent them from meeting the ministry absenteeism threshold would just constantly exit the program (because they were able to meet their individualized attendance goal) only to re-enter it sometime during the next 24 months when they did not meet the ministry absenteeism threshold. Such a result could well, in my view, constitute constructive discrimination on the basis of handicap, i.e., it would be a neutral requirement which has a disproportionate impact on disabled employees.

Each case, obviously, must be examined to determine whether such an accommodation is possible or not. But the ASP manual is not at all clear on this possibility and must be amended to reflect this potential accommodation.

b. Is the ASP insufficiently clear on the duty to accommodate?

The Union asserts that the ASP is written in a manner that will cause managers to ignore the obligation to accommodate employees. It asserts that while giving "lip service" to the obligation, the ASP is so deficient in directives and guidelines that the managers will have no idea whether or not they have fulfilled their obligations. The Union points out that the duty to accommodate is not described anywhere in the manual, and that the only place it is mentioned is in a separate document, the Equal Opportunity/Employment Accommodation for Persons with Disabilities Operating Policy and even there, there is no real description of the extent of the duty. As a result, the Union asserts that managers have no guidance on the issue. It also points out that there is no reference to the provincial fund to help pay for potential accommodations.

In response, the Employer asserts that the program has adequate references to the employer’s duty to accommodate at every level. It submits that the policy, on its face, clearly recognizes this obligation and does not violate the Code. In its submission, whether that duty is met in a given case must be determined in the context of an individual grievance, not a policy grievance.

It is my view that the policy itself repeatedly and clearly refers to the employer’s duty to accommodate employees. The message is clear: "employment accommodation is made, wherever possible, at all review levels." While it may be preferable to put more guidelines regarding potential accommodations in the manual itself, similar to the training information provided to the managers in conjunction with the ASP, the absence of it does not render the plan defective. The important fact, for this policy grievance, is that the ASP fully recognizes the employer’s duty to accommodate.

3. Does the ASP violate Article 44 of the collective agreement?

Article 44 of the collective agreement provides, in pertinent part, as follows:

ARTICLE 44 - SHORT TERM SICKNESS PLAN

44.1 An employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows:

(i) with regular salary for the first six (6) working days of absence,

(ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence,

in each calendar year.

...

44.9 Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer.

44.10 After five (5) day’s absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Deputy Minister of the ministry, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his or her designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days.

ATTENDANCE REVIEW MEETINGS

44.13 Where an employee is interviewed by a member or members of management in respect of the employees’ record of attendance at work, no evidence of that interview or of the particular aspects of the attendance record upon which that interview is based shall be admissible before the Grievance Settlement Board in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview, and the employee either had such Union representation or declined that representation in writing prior to the interview.

The Union acknowledges that the case law is clear that simply because the collective agreement includes a short-term sickness plan of income protection does not preclude the employer from establishing an attendance management program or terminating an employee for innocent absenteeism. But it asserts that the plan undermines the employees’ legitimate use of their rights under Article 44 and that where the collective agreement addresses such things as attendance meetings and medical information, the Employer cannot unilaterally implement different and more onerous policies.

The Employer, in response, asserts that the nothing in Article 44 precludes that establishment of the ASP, nor does it improperly undermine the employee’s rights under it. In support of its position, the Employer cites OPSEU (El-Batrik) and Ministry of Health (1990), GSB No. 1274/88 (Roberts); OPSEU (Union Grievance) and Ministry of Health (1993), GSB No. 1527/91(Finley); Re City of Coquitlam, supra; Re Toronto Electric Commission, supra.

The GSB has clearly held that Article 44 does not preclude the adoption of an attendance management program or preclude termination for innocent absenteeism. See OPSEU (El-Batrik), supra; OPSEU (Union Grievance), supra. In El-Batrik, the Union argued not only that the short-term sickness plan precluded the grievor’s discharge for innocent absenteeism but also that discharging the grievor improperly deprived her of those benefits. The board rejected both contentions. In OPSEU (Union Grievance), supra, the board held that an attendance management program did not violate Article 52 [now Article 44] of the collective agreement.

Similarly, in Re Scarborough Fire Fighters Association, Local 626, supra at pp. 46-47, Arbitrator Mitchnick determined that an attendance management program did not violate the sick leave provisions of the collective agreement which were not intended to be a "complete code" on the subject. There was no denial of sick-pay benefits while the program was operating and there was no change to the rules regarding medical certificates. See also, Re Toronto Electric Commissioners, supra.

The ASP, on its face, does not affect employees’ use of their sick leave credits. Nor on its face is there anything so onerous or coercive in the plan that employees’ rights under Article 44 will be undermined. The case law establishes that the availability of sick leave credits does not give an employee a blanket entitlement to use those credits. Employees with unused credits, as in El-Batrik, may still be terminated for innocent absenteeism. Accordingly, there is nothing in the ASP which is contrary to Article 44.1.

Further, the ASP does not violate Article 44.9, 44.10 or 44.13. Article 44.9 allows the employer to require the employee to submit to a medical examination, at the employer’s expense, when, for reasons of health, an employee is frequently absent or unable to perform his or her duties. That is fully consistent with the ASP: the employer pays for any medical assessments required. There is also nothing in the ASP that is inconsistent with Article 44.10, which deals with medical certificates, nor Article 44.13, which deals with attendance review meetings. Under the ASP, the employee has the right to union representation at each interview with management and waiver of that right must be in writing.

4. Does the ASP violate Article 9.1 of the collective agreement?

Although this issue was raised in the grievance, it was not a point specifically argued in the case. Article 9.1 states as follows:

The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

I conclude that there is nothing inconsistent with this obligation in the ASP. Health and safety matters may be addressed through discussions in the various levels of the ASP.

5. Is the ASP an unreasonable policy?

Under Article 2.1, Management Rights, the Employer has the right to make "reasonable rules and regulations." The Union asserts, for a variety of reasons, that the ASP is not a reasonable rule.

a. The use of a ministry absenteeism threshold.

In the Union’s submission, the use of ministry absenteeism thresholds, as opposed to occupational averages or, where appropriate, institutional averages for threshold purposes is discriminatory. It contends that there are significant variations in absenteeism among occupational groups, with high risk occupations such as in corrections and nursing having substantially more absenteeism than employees in low risk jobs. It also submits that there are significant variations in absenteeism among institutions. The Union further asserts that the absence of any discretion to exempt an employee is unreasonable. It cites to the situation of Ms. Bonk who surpassed the ministry threshold when she had a miscarriage, a situation unlikely to reoccur, and asserted that including her in the program was unreasonable and served no useful purpose except to harass her for her legitimate use of sick leave.

The Employer asserts my jurisdiction in this policy grievance is to determine whether the ASP is reasonable, not whether it is "correct" or the most reasonable or even if other plans might be more reasonable. It submits that there is a range of reasonableness and that I have no authority to intervene unless the ASP is unreasonable. In support of this contention, the Employer cites to OPSEU (Drew) and Ministry of Correctional Services (1989), GSB No. 331/89 (Sloan, Vice-Chair)

In terms of the use of ministry absenteeism thresholds, the Employer contends that it is a reasonable approach which should be upheld. The evidence of Ms. Hopps, it asserts, established that other approaches such as bargaining unit, occupation and worksite were considered but were determined to be unworkable and inconsistent with existing data systems through which absenteeism is reported by ministry. The Employer also points to Ms. Hopps evidence regarding why inclusion in the program is automatic, so that if assistance or accommodation is needed those issues may be addressed. While it acknowledges that the delay in implementing the program in Ms. Bonk’s case was improper, it argues that this was an implementation problem which does not undermine the validity of the program itself.

In support of its assertions, the Employer cites to OPSEU (Union Policy) and Ministry of Health, supra, in which a panel of the GSB upheld an attendance program initiated by the Ministry of Health at its Penetanguishene Mental Health Centre. The program was developed because of the facility’s high absenteeism average for illness and WCB injuries which was the highest among the provincial psychiatric hospitals. Under the program, stage one took place after "5 days’ absence or its equivalent" and involved an "initial interview with one’s supervisor". Stage two occurred after "9 days’ absence or its equivalent" and involved a "second interview with one’s supervisor." Stage 3 took place after "12 days’ absence or its equivalent" and involved "a third interview with one’s department head". The Union challenged a number of aspects of the policy, including its use of fixed thresholds which did not permit the distinction of individual situations. It further argued that instead of fixed thresholds, use of the departmental or overall average would be more appropriate The employer argued that the distinction of individual situations came into play at the interview stage and asserted that the alternatives proposed by the Union of institutional or departmental averages would be unlikely to result in improved attendance simply because the average was so high. The employer further asserted that the fixed thresholds were designed to address inconsistent applications in a prior policy. According to the board at p.7, "[t]he solution arrived at was to make the initial response to absence, non-discretionary." The board found the approach to be reasonable, concluding at pp. 7-8:

The Board finds that the use of a policy of non-discretionary, fixed thresholds combined with a discretionary response, in and of itself, is a reasonable method of monitoring and improving attendance ... This does not however, mean that there should be no exceptions to the application of this method.

The Union, in contrast, submits that this decision does not authorize an absolute ministry standard, with no discretion, and should not be so construed.

The Employer also relies on Re City of Coquitlam and International Assn. of Firefighters, Local 1782, supra, in which it was held at p. 20 that "an employer is entitled to set the standards for attendance, and there is nothing unreasonable per se in adopting workplace averages as a measure of what is acceptable."

In this grievance, the onus is the Union to establish that the ministry absenteeism threshold used in the ASP is unreasonable. That onus has not been met. The GSB, in OPSEU (Union Policy), supra, determined that a policy of non-discretionary, fixed thresholds, combined with a discretionary response at the interview, was "a reasonable method of monitoring and improving attendance." Once five absences occurred, the employee was in level one. While the ASP is based on the ministry absenteeism average, instead of a specific number of days, the approach is the same - a non-discretionary, fixed threshold followed by a discretionary response. Through its determination, the Finley board implicitly rejected the Union’s contention that a fixed threshold program improperly did not permit the distinction of individual situations, nor its view that other thresholds based on the department or institutional average would be more appropriate.

The board’s comment that "[t]his does however, mean that there should be no exceptions to the application of this method" does not change the result. Again, what the board approved was a non-discretionary, fixed threshold.

Based on this ruling, and the other jurisprudence cited, I cannot conclude that use of a ministry absenteeism threshold is unreasonable. Employer averages are a very common method of monitoring absences and it provides a consistent initial approach to absenteeism. It is based on objective, ascertainable data. The fact that other thresholds might be equally reasonable, or even more reasonable, is irrelevant. In an unreported decision of Arbitrator Knopf, referred to in Scarborough Firefighters Association, Local 626, supra at p. 34, the arbitrator upheld an attendance program in which an employee would enter the program after only six quarter day absences in a year, each of which was viewed as an incident of absence. The union argued that the policy was unreasonable because it could be triggered at such a low threshold of absences. Arbitrator Knopf stated:

But it is not my function to impose my opinion upon the parties as to what is a reasonable threshold. Suffice to say that I have not been satisfied that the threshold here is unreasonable.

I reach the same conclusion here.

In Re Scarborough Fire Fighters Association, Local 626, supra, Arbitrator Mitchnick upheld an attendance program in which entry was based on a straight average of total days lost for the Fire Department. The Union had argued, among other things, that the threshold was unreasonable because the more employees improved their attendance the more the departmental average would provide a tighter standard for pulling people into the program. The arbitrator agreed at p.48 that this calculation would "mean the imposition of ever and ever tightening standards for monitoring and interviewing as, if the employer is successful, attendance actually improves across the Department" but he nevertheless upheld the program. In his view, "thought should be given to further refinements."

It would appear that this approach may be equally valid here, and perhaps thought should be given to "further refinements", but that does not mean the program’s use of a ministry absenteeism threshold is unreasonable. The same conclusion applies to the use of the ministry threshold in the AEP.

b. Should a 12-hour shift be treated as 1 or 1.5 days of absence?

The Union contends that the ASP (and its predecessor the AEP) improperly treats employees who work 12-hour shifts as having taken 1.5 days of absence for each missed shift. In its view, this is discriminatory because it results in such employees reaching the threshold much faster, with fewer "absences", than employees who work an 8-hour shift. For example, if the ministry absenteeism threshold is 9 days of absence, a 12-hour shift employee will reach the threshold after only 6 absences, compared to 9 absences for his 8-hour co-worker, as result which is asserts is unreasonable.

In support of its contention, the Union cites to the board’s decision in OPSEU (Union Policy) and Ministry of Health, supra, which involved an attendance management program at Penetanguishene Mental Health Centre. The same issue arose because the program used a total-time based, instead of an occurrence-based, system for calculating when employees’ reached the absenteeism threshold. The Union argued that this approach resulted in two employees, one working a compressed work week and one a regular work week, arriving at the threshold at different times was unreasonable. The board agreed, finding that "the shift discrepancy [i.e., the difference in the number of occasions of absence required to reach the threshold] becomes greater as one moves from Stage 1 to Stage 3." It concluded at p.14 that the program’s approach was "unreasonable in that the length of time for variously scheduled groups of employees to arrive at the threshold differs widely." In addition, the board reasoned at p. 13 that absences due to illness or injury were more akin to leaves such as bereavement, special or compassionate leave which "recognize that no matter what hours an employee may work, the situation triggering the leave request, requires the full day." In the board’s view: "So it is with illness or injury. In most cases individuals are absent for a full shift..." The board ordered the parties at p.14 "to develop a calculation system which minimizes the discrepancies in arrival at the thresholds..."

The Employer asserts that this decision is distinguishable from the instant case because there was no evidence there that the 12-hour shifts were counted as 1.5 days in calculating the average absenteeism which was done in the ASP and results in a higher ministry average. Instead, the program there used arbitrary 5, 9 and 12 day thresholds, without any regard or connection to the average. In addition, the Employer asserts that the board incorrectly concluded that the "shift discrepancy becomes greater as one moves from Stage 1 to Stage 3." In fact, the Employer contends, there is no change; the ratio always stays the same. Further, while it acknowledges, at first glance, that it may seem "unfair" to credit a 12-hour employee with 1.5 credits of absence for a missed shift while his 8-hour co-worker receives only 1 credit, that unfairness dissipates over time since the number of work days per week are less. Thus, it asserts, that if an employee has an illness or injury which lasts for a two-week period, he would receive 9 absence credits as a 12-hour employee (6 days @ 1.5 credits per day) while the 8-hour employee would receive 10 credits (10 days @ 1 credit per day). Further, it contends that if an occurrence-based system is used, a 12-hour employee will have used significantly more absence time before he or she reaches the threshold than an 8-hour employee. Thus, the perception of "unfairness", it asserts, works the other way as well and certainly over the course of a year, it submits that it is fair to treat employee absences on the basis of hours worked. The Employer also asserts that any problem initially caused by using the 1.5 calculation can be dealt with through individualized goal setting. Finally, for much the same reasons, the Employer asserts that there are "exceptional circumstances" to warrant a departure from the holding in OPSEU (Union Policy) and Ministry of Health, supra, under Blake et al, supra.

In Blake, the following comments were made about the nature of GSB decisions at pp. 8-9:

Thus each decision by a panel becomes a decision of the board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuos attempts to persuade one panel that another panel was in error only encourages multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.

We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances.

Thus, under Blake, there must be "exceptional circumstances", beyond a manifest error, before one panel of the GSB may review the decision of another panel, and the onus is on the party seeking such review.

With respect, I cannot conclude that the standard of "exceptional circumstances" has been established. Although the attendance programs involved are quite different the issue in dispute is exactly the same - the employer’s crediting 12-hour employees with 1.5 days of absence for every missed shift. The board determined that this approach was "unreasonable." It ruled that way for two reasons. First, because the "length of time for variously scheduled groups of employee to arrive at the thresholds differs widely" and because, in general, "the situation triggering the leave request, requires the full day." Both rationales apply to the ASP. If the ministry absenteeism threshold is 14.1, as it is in the Ministry of Health, a 12-hour employee will reach the threshold with 9.4 absences, whereas an 8-hour employee will reach it only after 14 absences. That is a significant difference in the length of time required to reach the threshold and, it would appear, the type of difference found to be unreasonable by the Finley board. Further, in general, if an employee is too sick to work, "the situation triggering the leave request requires the full day." While it may be, as the Employer asserts, that the situation balances itself out over time, the board’s concern was with the disparity in how quickly the various groups could reach the threshold and that concern is also present in the ASP. For the same reason, the fact that the ministry average takes into account the 12-hour employees, by treating their absences as 1.5, does not change the result. The board’s concern about the speed with which the threshold may be reached is still present.

The same concern, moreover, is present throughout the three levels of the ASP. Whatever attendance goal is set, a 12-hour employee will reach it more quickly than an 8-hour employee. Although the Employer asserts that this situation, if it was problem, could be dealt with through the setting of an individualized attendance goal, I cannot conclude that this would be a viable solution. It would, more likely than not, be used only in an unusual situation yet the problem regarding the speed with which the attendance goal is reached applies to all 12-hour employees.

Accordingly, I conclude that the instant grievance is not sufficiently distinguishable from the situation before the Finley board, and that there are no "exceptional circumstances" requiring me to depart from that award. I am compelled to follow that decision and conclude that utilizing a total time-based calculation for 12-hour employees is unreasonable. As occurred in the Finley decision, I order the parties to "develop a calculating system which minimizes the discrepancies in arriving at the thresholds..."

In addition, since the same approach was taken in the AEP, this aspect of the AEP must also be found to be unreasonable.

c. Is the ASP clear and unequivocal, was it brought to the attention of the affected employees before implementation, and has it been consistently enforced?

The Union asserts that a rule unilaterally introduced by an employer, and not subsequently agreed to by the union, must, among other things, be clear and unequivocal, must be brought to the attention of the employees affected before implementation and must be consistently enforced from the time it is introduced. Re Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd. (1965), 16 L.A.C. 73, p.85 (Robinson). The Union argues that these requirements were not followed with the ASP.

The Union contends that the ASP is neither clear nor unequivocal. It points out that there is no single document which states the terms of the plan and that, instead, the plan is scattered over a great number of documents - the ASP manual, the HIP manual, the Return-to-Work/Employment Accommodation Operating Policy, the Equal Opportunity Operating Policy which was not revised until 1998, and the 1998 Q & A documents from the various ministries, most of which were not entered into the record. It submits that from October 1, 1997, when the program was implemented, up to the present, no intelligent employee would know what documents make up the plan

The Union further submits that the clearest evidence of the ASP’s lack of clarity are the discrepancies between Ms. Hopp’s evidence concerning how the program is supposed to work and how the manager’s have been implementing it as well as the differences between what is stated in the manual and the Q & A materials from the Ministry of the Attorney General. For example, whereas Ms. Hopps testified that managers may establish personal attendance goals, this was not done in Ms. Collins’ case, nor is a manager’s power to do so clearly stated in the manual. Although some managers might have used discretion in setting attendance goals, others have not. Whereas Ms. Hopps stated that the "fresh start" required individual determinations, the Ministry of the Solicitor General and Correctional Services automatically transferred its employees. Whereas Ms. Hopps testified that an employee’s participation in the ASP and the documented interviews could not be considered in competitions or developmental opportunities, that was exactly how it was used by one manager until the situation was corrected. Given these discrepancies, the Union asserts that it cannot be said that the program is clear. For the same reasons, it contends that the program has not been consistently enforced.

Nor, in the Union’s view, given the plethora of documents which comprise the ASP can it determined that the program was fully brought to the employees’ attention before it was implemented. Certainly, it submits, the documents created in 1998 were not provided in advance, nor was there any evidence that the ministry Q & A documents were ever provided to the Union or the employees. In the Union’s view, it is patently unfair to admit employees into a program which is evolving and incomplete.

The Employer, in turn, submits that the ASP is clear and unequivocal - the purpose of the program, the various levels, entry into the program, the establishment of individualized goals, the importance of employment accommodation and assistance, and the roles and responsibilities of the parties are all clearly articulated. It submits that the reason for the three separate documents - the ASP manual, the HIP manual and the Return-To-Work/Employment Accommodation manual - is that they deal with different concepts, and two of them (the HIP and Return-to-Work/Employment Accommodation manual) also apply to workers’ compensation absences which is another reason for them to be separate. The Employer further contends that simply because subsequent Q & A documents offer further guidance about the program does not mean that the basic program documents are insufficiently clear. It argues that given the scope of the program, it is by necessity a "work in progress" which will require evaluation and fine-tuning. But the essential aspects of the program, it asserts, are clear from the primary documents. It acknowledges that the documents might be organized better, but insists that there is nothing unclear about the program.

In support of its position, the Employer relies on Re Coquitlam (City) and International Assn. of Firefighters, Local 1782, supra at p. 22, which upheld an attendance program even though, to a certain extent, it was a "plan in progress"

As to the Union’s evidence regarding implementation, the Employer asserts that the evidence does not establish that the plan has been inconsistently applied so as to render the program unreasonable. It submits that the Union has not established, as it must, a causal link between the terms of the ASP and how an individual supervisor may have implemented it. It submits that the policy itself does not compel what occurred to Ms. Collins or Ms. Bonk. At best, it asserts, the Union’s evidence raises implementation issues, but falls far short of establishing a causal link between the policy and the managers’ actions.

In terms of the "fresh start" issue, the Employer contends that what occurred is not an issue regarding the reasonableness of the program. It argues that the employees suffered no prejudice as a result of being moved into the ASP, and that even if there was prejudice in a given case, that would require an individual grievance.

In my view, the ASP, with certain exceptions, is sufficiently clear and unequivocal so as to be reasonable. Can it be improved? Yes. Is it so unclear and equivocal that it is unreasonable? No. The ASP manual clearly sets out the basic parameters of the program: its goals and objectives, who is eligible, how one enters, what is a ministry threshold and how it is determined, the three levels and how they work, how one exits the program, and the roles and responsibilities of the parties. The HIP manual clearly sets out how health information needed under the ASP is to be obtained. The Return-to-Work/Employment Accommodation manual sufficiently sets out