SUMMARY OF
ATTENDANCE SUPPORT PROGRAMPOLICY GRIEVANCE DECISION OF
GSB VICE CHAIR ABRAMSKY, DATED MAY 31, 1999
GSB #1925/96, 0341/98
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Policy grievances were filed
against the Ministry of Solicitor General and Correctional Services Attendance Enhancement
Program ("AEP") introduced in January 1996 and the Attendance Support Program
("ASP") that replaced the AEP across the government in October 1997. GSB
Vice-Chair Abramsky’s decision was issued on May 31, 1999.
Arbitrator’s Factual Findings:
The ASP applies to innocent absenteeism other than
WCB and LTIP absences. Employees enter the program when their absences on STSP or unpaid
leaves for illness or injury exceed Ministry absenteeism thresholds. Those thresholds are
based on the annual Ministry absenteeism average not including WCB and LTIP absences. Each
year a new average is set for each Ministry by MBS. Ministry managers have no discretion
to waive that threshold.
The ASP has three Levels. Level One lasts six months
with a possible one-time extension, Level Two lasts six months and cannot be extended and
Level Three lasts three to six months. In each level, an attendance goal is set and
monitored through meetings and letters. There is an obligation to consider accommodation.
If the attendance goal is not met, the employee moves to the next Level. At the end of
Level Three, termination, reassignment, demotion or extension of the Level are considered.
If an employee does meet the attendance goal in a Level, then the employee exits the ASP.
If that employee exceeds the Ministry threshold again at any time within 24 months, they
re-enter the program at the same Level as they left.
According to the main management witness, goal setting
within Levels is not directly tied to the Ministry entry threshold and the ASP allows for
a personal absenteeism goal which may exceed the Ministry average. However, the ASP does
not specifically state this.
The arbitrator reviewed several other aspects of the
ASP. Attendance at the Level One interview is not mandatory. Health information should be
kept separate from other personal information preferably in a separate sealed envelope. An
employee’s attendance record may be considered in a job competition or other
opportunities, but the employee’s involvement in the ASP and any accommodation should
not be considered.
Arbitrator’s Rulings:
The first issue was whether the ASP is disciplinary and
hence void. The arbitrator concluded that the characteristics of the ASP, including the
required goal setting, progressive levels, warnings and the potential for discharge, do not
render the ASP disciplinary.
The arbitrator did note:
…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.
The next issue dealt with by the arbitrator was whether
the ASP as written violated the Human Rights Code or Article 3.1 of the Collective
Agreement. The arbitrator found it did not. It was her view that the inclusion of
employees whose absences are due to handicap or disability within the ASP is not
discriminatory. "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. Instead it starts a
process for taking up the issue of attendance with the employee".
The arbitrator considered whether the ASP violated the
duty to accommodate or Articles 9 or 44 of the Collective Agreement or was an unreasonable
policy. The arbitrator did not find it to be any of these things. Generally, the
arbitrator said that she "could not 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". She rejected
the need to have departmental or institutional thresholds.
The arbitrator did find some fault with the ASP. The
employer can enter members into the ASP according to Ministerial thresholds but, after
inclusion, there still remains a need for "individualized treatment, assistance and
accommodation" of disabled employees. The arbitrator required that the ASP be
reworded to make it "more explicit" that attendance goals within Levels can be
set in excess of Ministerial averages.
The arbitrator also felt that the possibility of
indefinite extensions at Level Three should be made more explicit. Finally "caution
must be exercized" that the time-frames for the progressive levels "do not
preclude a sufficient period to assess and address an individual situation. There would
appear to be some risk because the program only allows one extension at Level One and no
extensions at Level Two. "If an employees medical condition is in flux or is
difficult to diagnose, or new complications arise, additional time may be required".
The arbitrator further found the ASP could fall short of
the Code in its treatment of handicapped employees during the 24 months following
exit from the program. The arbitrator advises how to correct this. Employees "who can
perform the essential duties of their job but cannot meet the Ministry absenteeism
threshold" due to disability should have personalized ASP re-entry absenteeism
thresholds if that is needed as an additional employment accommodation. This will ensure
that a disabled employee who went into the ASP but has now exited does not automatically
have to re-enter simply because they again fail to maintain the Ministry absenteeism
threshold. Automatically re-entering the ASP after going through the Program could well
"constitute constructive discrimination on the basis of handicap, i.e. it would be a
neutral requirement which has a disproportionate impact on disabled employees".
The arbitrator then dealt with whether a 12 hour shift
should be treated as one or 1.5 days of absence. She concluded that utilizing a
"total time-based calculation for 12 hour employees is unreasonable". She orders
the parties to "develop a calculating system which minimizes the discrepancies in
arriving at the thresholds so that 12-hour employees arrived at threshold at the same
speed as 8-hour employees".
The arbitrator went on to deal whether the ASP gave
managers an overly large opportunity to harass employees. She concluded that the ASP
"does not sanction or permit harassment of employees. Although there is no limit on
the number of meetings that may occur, the program must be enforced in a reasonable
manner, consistently with its stated purposes. If a manager uses the program to harass an
employee, that may be dealt with through an individual grievance."
Conclusion:
The arbitrator concluded the ASP did not violate any
article of the Collective Agreement or the Human Rights Code. However, the ASP did
have to be rewritten so that the following are clear:
- Although the initial Ministry threshold for putting employees into the
ASP is not unreasonable, more flexibility may be necessary within the Levels. In the
Levels, a manager can and should, where necessary in order to accommodate a person’s
illness or injury:
- Set a personal absenteeism goal above the Ministry’s absenteeism
threshold;
- Reset an employee’s absenteeism goal based on new information;
- Extend the time to a Level, including more than one extension at Level
Three;
- Where an employee with a disability leaves the ASP but it is anticipated
they cannot meet the Ministry absenteeism average, management should establish a personal
absenteeism threshold so that the employee does not face constantly re-entering the ASP.
- In job competition or other developmental situations, a person’s
inclusion in the ASP or their accommodation may not be considered, although their
attendance record may be.
- The ASP improperly treats a single 12-hour shift as an absence of 1.5
days. The ASP should be refined to minimize the discrepancy between 12-hour shift and
8-hour shift employees in arriving at the Ministry thresholds.
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