In a recent decision involving the Montfort Hospital and the Canadian Union of Public Employees (CUPE), Arbitrator James Cameron rejected the union’s claim to declare the Hospital’s attendance management program null and void.
André Champagne and Marie-Michèle Pellerin-Auprix of the firm Emond Harnden successfully argued that the provisions of the attendance management program were reasonable (subject to a few exceptions) and that the program was enforceable.
What is an attendance management program?
An attendance management program is a tool used by management that aims to, among other things:
- Assist the employer in monitoring individual absences as well as organization-wide absences;
- Communicate attendance expectations to employees. For example, an employer may set a corporate attendance standard against which an employee’s attendance may be compared for the purpose of entry and progression into the program;
- Inform employees of the potential consequences of not meeting those expectations;
- Provide an opportunity for both the employer and the union to understand an employee’s specific attendance challenges and to consider accommodation, where appropriate, or other adjustments as needed.
Arbitrator’s Decision
In this case, the collective agreement recognized the employer’s right to implement a workplace attendance program. Nevertheless, the union’s policy grievance argued that the attendance management program was unreasonable and requested that the arbitrator declare the program unenforceable. Among other things, the union advanced the following arguments:
- The program was not consistent with the collective agreements applicable to the Hospital and did not comply with the Employment Standards Act, 2000 or the Ontario Human Rights Code;
- The corporate absenteeism rate used by the Hospital within the program was unclear and was not communicated to employees in a timely manner.
Arbitrator Cameron reviewed the legal principles regarding attendance support programs and reaffirmed certain well-established principles, notably that an employer may, in good faith, exercise its management rights by implementing such a program, provided that the program is reasonable. The reasonableness of the program is assessed in light of the principles established in the seminal KVP case.
The arbitrator also noted that, contrary to the union’s arguments, the program could provide for administrative termination in certain circumstances, where it is established that an employee is unable to perform any work in the foreseeable future and the employer has accommodated the employee up to the point of undue hardship, if applicable.
Arbitrator Cameron ultimately concluded that the Hospital’s workplace attendance management program was clear and reasonable, subject to a few modifications to address the following points:
- The program did not state the Hospital’s obligations under the applicable collective agreements, the Human Rights Code, and the Employment Standards Act, 2000.
- The program was not brought to the attention of employees who entered the program in a timely manner. Relevant documents should be made available on the Hospital’s portal so that employees have a clear understanding of the program and its application, and can easily access the information.
Finally, the arbitrator concluded that the union was not entitled to a ‘perfect’ program through the grievance process, but only to a reasonable program.
Arbitrator Cameron therefore ordered that the documents comprising the program be revised by the parties to reflect the above-noted changes.
In Our View
This decision provides a useful overview of an employer’s rights and obligations when implementing an attendance management program in a unionized workplace. While it is generally permissible to implement such programs, employers should consider any relevant collective agreement provisions to ensure consistency.
For more information on the implementation and application of absenteeism management programs in your workplace, please contact André Champagne at achampagne@ehlaw.ca or Marie-Michèle Pellerin-Auprix at mmpellerin-auprix@ehlaw.ca.
