SUMMARY OF
ATTENDANCE SUPPORT PROGRAM
POLICY
GRIEVANCE DECISION OF
GSB VICE CHAIR ABRAMSKY, DATED MAY 31, 1999
GSB #1925/96, 0341/98
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 Abramskys decision was
issued on May 31, 1999.
Arbitrators
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
employees attendance record may be
considered in a job competition or other
opportunities, but the employees
involvement in the ASP and any accommodation
should not be considered.
Arbitrators
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
persons illness or injury:
|
Set
a personal absenteeism goal above the
Ministrys absenteeism threshold; |
|
Reset
an employees 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 persons 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.
|