Non-culpable absenteeism terminations in a unionized environment v Final 2.0

Non-culpable absenteeism terminations in a unionized environment: Employer considerations based on Canadian legislation, jurisprudence and literature

Human Resource Management: BN 8204

Memorial University

St. John’s NL, Canada A1B 3X5

Student Number:

009902685

This page is intentionally left blank

Table of Contents

Abstract / introduction .......................................................................................................................... 1

Defining non-culpable absenteeism...................................................................................................... 1

Overview of Canadian legislation......................................................................................................... 2

Scope................................................................................................................................................. 2

“Absenteeism” in the legislation....................................................................................................... 3

Saskatchewan................................................................................................................................ 3

“Absence” in the legislation.............................................................................................................. 3

Federal........................................................................................................................................... 3

“Absent” in the legislation ................................................................................................................ 3

“Non-culpable” in the legislation...................................................................................................... 3

“Termination” in the legislation........................................................................................................ 4

Federal........................................................................................................................................... 4

Ontario .......................................................................................................................................... 4

Saskatchewan................................................................................................................................ 5

Overview of Canadian jurisprudence and literature ............................................................................. 5

Scope................................................................................................................................................. 5

Traditional test requirements ............................................................................................................ 6

Demonstrate a history of excessive absenteeism .......................................................................... 6

Absences due to work related injury......................................................................................... 7

Demonstrate a poor prognosis for improvement in the future...................................................... 9

Considering post-discharge evidence ..................................................................................... 10

Other considerations ....................................................................................................................... 11

Warning employees when absenteeism is of concern / excessive .............................................. 11

Human rights law........................................................................................................................ 14

Duty to accommodate ................................................................................................................. 16

What is undue hardship?......................................................................................................... 17

Collective agreement language ................................................................................................... 19

Conclusions and future research directions ........................................................................................ 20

References........................................................................................................................................... 22

Bibliography (excluding those listed in References) .......................................................................... 25

Appendix A – Emerging issues in attendance management ................................................................ A

Non-culpable absenteeism terminations in a unionized environment

1

Abstract / introduction

While many Canadian employers struggle to manage employee absenteeism in a unionized

environment, modest literature exists for employers to consider concerning non-culpable

absenteeism terminations in a unionized environment. In this paper I introduce non-culpable

absenteeism and attempt to provide an overview of considerations for employers based on Canadian

jurisprudence and current research literature. Scholarly research literature on non-culpable

absenteeism is limited, thus in lieu of such I also consider literature from professionals and

practitioners in related fields. I also review current labour / industrial legislation in Canada and

consider literature concerning applicable jurisprudence, human rights law, duty to accommodate and

/ or from applicable collective agreements; I hope that by doing so I can lay the groundwork for a

holistic overview of considerations for employers in this area, while also identifying where further

research may be needed. As I explore different topics within this paper, I note the associated

implications and considerations for employers based on my findings.

Defining non-culpable absenteeism

There are various legal, professional, and practitioner-derived definitions that exist for non-

culpable (innocent) absenteeism in Canada; let us consider some of them below:

[Refers] generally to absences that are beyond the employee’s control. Non-culpable

absences may be those that flow from a ‘disability’ (as defined in the human rights

legislation) or may be caused by periodic/transient, unrelated conditions that would not

qualify as a ‘disability’ (Keenan and Farahani, n.d.).

Innocent absenteeism refers to the absence of employees due to illness or injury for reasons

beyond the employee’s control. This does not include absences due to injury due to a work

related injury for which there is a Workplace Safety Insurance Board (WSIB) claim

(University of Western Ontario, 2004).

Absence from work due to illness, or non-occupational injury, including absences that may be

a result of a disability other than a compensable illness or injury (City of Toronto, 2001).

All three of definitions above provide us with an idea of what non-culpable absenteeism may

be; however, what if anything does Canadian legislations and jurisprudence speak to in relation to


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these definitions. For example, The University of Western Ontario (2004) states that absence due to

work related injury is not considered innocent absenteeism – will Canadian jurisprudence always

agree with and support this statement; or are there times when such absences may count towards

non-culpable absenteeism (e.g. for purposes of termination). I will explore this and other ideas in

subsequent sections of this paper.

Overview of Canadian legislation

Scope

The electronic database used to explore current Canadian legislation was Labour Spectrum,

an online labour law research service owned by Canada Law Book (a division of Thomson Reuters

Canada Limited). The electronic database was searched using the search terms “absenteeism”,

“absence”, “absent”, “non-culpable” and “termination” to locate legislation from the ten provinces,

three territories and / or federal jurisdiction(s). Specifically, all legislation pertaining to general

labour / industrial relations codes and / or acts was reviewed; however legislation pertaining to

specific provincial or territorial public sector(s) was not reviewed (e.g. the Teachers’ Collective

Bargaining Act of Newfoundland and Labrador) due to limitations.

Results for each search term were manually reviewed by the researcher to determine whether

or not they directly pertained to the topic of non-culpable absenteeism termination. Each search

term can be found listed in a heading below with sub-headings used to outlay the results found by

province or locale where applicable (if a province or locale is not listed, it is because applicable

search results were not located). In some cases, multiple search terms located the same section of

legislation for a province or locale; where this happened, legislation was only discussed / listed once

under the initial search term in which it was found.

Furthermore, the information listed below is not meant to be viewed as an all-inclusive list,

but instead as a general overview of what was located and seen as pertinent by the researcher.


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“Absenteeism” in the legislation

Saskatchewan

Based on language from Saskatchewan’s Labour Standards Act (1978), employers can

generally only consider non-culpable absenteeism termination of employees who have completed 13

consecutive weeks of employment, if an employee’s absenteeism exceeds 12 weeks in a 52 week

period (for serious illness or injury); or if an employee’s absenteeism exceeds 12 days in a calendar

year (for illness or injury that is not serious). The exception would be if it can be demonstrated that

the employee has a record of chronic absenteeism and there is no reasonable prognosis for

improvement.

“Absence” in the legislation

Federal

Based on language from the Canada Labour Code (1985), employers can generally only

consider non-culpable absenteeism termination of employees who have completed three months of

consecutive employment, if an employee’s absenteeism exceeds 12 weeks (no other specifications

were offered as was the case in Saskatchewan for the search term ‘absenteeism’). However, the

language states that an employer may assign persons to a different position, with different terms and

conditions if they are unable to return to the work they could previously perform (prior to illness or

injury).

“Absent” in the legislation

A search of the database using the search term ‘absent’ did not locate any new applicable

result(s) for any province or locale.

“Non-culpable” in the legislation

A search of the database using the search term ‘absent’ did not locate any applicable result(s)

for any province or locale.


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“Termination” in the legislation

Federal

Section 24 of the Canada Labour Standards Regulations (1978) states, “Every employer shall

make and keep a record in respect of each employee showing the date of commencement of

employment and the date of termination of employment and shall keep such record for a period of at

least 36 months after the date of termination of employment.” Employers within federal jurisdiction

(e.g. companies in telecommunications, air transport, chartered banks, etc.) should be aware of this

language (as well as language discussed in the associated sub-sections) upon termination of an

employee – including termination for non-culpable absenteeism. Failure to comply would be a

violation of regulations which can result in jail time and / or fines (Canada Labour Standards

Regulations, 1978). Furthermore, an employer should keep appropriate documentation for a

reasonable period of time (e.g. minimum of 36 months within federal jurisdiction) in order to ensure

it can defend itself, should a termination for non-culpable absenteeism eventually be heard by an

arbitrator and / or court.

Additionally, section 34 of the Canada Labour Standards Regulations (1978) states, “Where,

within nine months after an employee's return to work in accordance with subsection 239.1(3) of the

Act, an employer lays off or terminates the employment of that employee or discontinues a function

of that employee, the employer shall demonstrate to an inspector that the layoff, termination of

employment or discontinuance of function was not because of the absence of the employee from

work due to work-related illness or injury.”

Ontario

A search of the database using the search term ‘termination’ did not locate any directly

applicable result(s) for the province of Ontario. However, in regard to termination in general, of

note was that either party to a collective agreement may request the Minister appoint the matter to a

single arbitrator after the grievance procedure is followed or after 14 days have elapsed from the


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time the grievance was brought to the attention of the other party; whichever first occurs (Labour

Relations Act, 1995). This may be of particular consideration to some employers, depending on

given assumptions they may have on such process (e.g. may assume arbitrators appointed by the

Minister are more sympathetic in regard to supporting non-culpable termination).

Saskatchewan

Similar to the federal jurisdiction, section 70 of Saskatchewan’s Labour Standards Act

(1978) requires employers to keep a record of employee information (including that related to

termination). However, unlike federal jurisdiction (as previously discussed), the duration in

Saskatchewan is longer at 60 months. Failure to comply would be a violation of the Labour

Standards Act (1978); furthermore, an employer should endeavour to keep appropriate

documentation for a reasonable period of time (e.g. minimum of 60 months in Saskatchewan) in

order to ensure it can defend itself, should a termination for non-culpable absenteeism eventually be

heard by an arbitrator and / or court.

Overview of Canadian jurisprudence and literature

Scope

The electronic database used to explore Canadian jurisprudence was Labour Spectrum, an

online labour law research service owned by Canada Law Book (a division of Thomson Reuters

Canada Limited). The electronic database was initially searched using the search terms

“absenteeism”, “absence”, “absent”, “non-culpable” and “termination” to locate cases in Canada

(where these search terms did not produce sufficient results, other search terms related to titles

within this paper may have also been used). Based on the results, cases, and some of the cases cited

within them, were manually reviewed by the researcher to determine whether or not they directly

pertained to the topic of non-culpable absenteeism terminations in a unionized environment. If they


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did, and they offered what was perceived to be new insights and / or considerations, they were

discussed and cited within this paper.

Historical cases (especially those found to be frequently referenced by other related cases)

were discussed to identify the traditional basis for rulings while more recent cases were also

discussed to demonstrate how Canadian jurisprudence may have changed over time and / or to

identify new considerations.

Furthermore, research literature was reviewed based on similar searches and processes (as

previously defined above) using Memorial University’s off-campus library (which include databases

such as business source complete, Psycinfo, JSTOR, etc.). As a last resort, where research literature

from databases was limited, search terms were used to locate literature and / or documentation from

other sources (e.g. universities, union locals, law firms, etc.) using internet search engines.

Traditional test requirements

A review of Canadian jurisprudence shows two traditional test requirements that an

employer, at a minimum, must meet when terminating an employee for non-culpable absenteeism.

These include demonstrating that an employee has a history of excessive absenteeism and

demonstrating that an employee has a poor prognosis for improvement in the future. These

requirements have been referenced as recently as August 2010, in Alberta Health Services (Calgary

Area) v. Health Sciences Association of Alberta (Paramedical Professional / Technical Unit). In the

next few sections, I will explore these test requirements based on specific Canadian jurisprudence

cases and will highlight implications and considerations from an employer perspective.

Demonstrate a history of excessive absenteeism

In 1972, in International Association of Machinists, Lodge 1703 v. Perfect Circle – Victor

Division, VNG Auto Parts Ltd, the arbitrator P. C. Weiler arguably set the yardstick for excessive

absenteeism as being, “proof that [an] employee has deviated substantially and unduly from the


7

average level of attendance in the [work area]” (p. 382). This was more recently reflected in Canada

Post Corp. v. C.U.P.W. when it was said, “a relevant factor, he held, was whether other employees

with even worse absenteeism records than the Grievor have not suffered [action]” (1993, para 7).

Whether the legal standard for reviewing [action] be its reasonability, justice, equity,

uniformity, etc., the particular case cannot be considered in a vacuum. There must be factors

which justify singling out one employee for the distinctive treatment of [action]. A key

criterion in this regard is the treatment customarily meted out to other employees in the [work

area] for like behaviour, and undue discrimination between employees will be grounds for

overturning the more severe discipline imposed on one of them (International Association of

Machinists, Lodge 1703 v. Perfect Circle – Victor Division, VNG Auto Parts Ltd, 1972, p.

382).

Thus, although an employer must demonstrate a history of excessive absenteeism, this alone

is not enough; it is important that employers use reliable and consistently applied criteria when

taking action and / or terminating employees for non-culpable absenteeism should they wish it to be

legally defensible (Mehrens & Popham, 1992 and Professional Testing Inc., 2006).

Further to my point that employers must demonstrate an employee has a history of excessive

absenteeism, this is also supported in more recent cases such as Alberta Health Services (Calgary

Area) v. Health Sciences Association of Alberta (Paramedical Professional / Technical Unit) (2010),

Telecommunications Workers Union v. Telus Communications (2010) and Sault Area Hospital v.

C.A.W.-Canada, Local 1120 (Thomson) (2010).

In the next section I will discuss absences surrounding work related injuries and whether or

not they may be considered as part of an employee’s past attendance record for the purposes of non-

culpable absenteeism termination.

Absences due to work related injury

When considering whether or not absences due to work related injuries (meaning those

injuries accepted by a recognized compensation board or commission as being compensable) may be

considered as part of an employee’s past attendance record (along with other non-culpable absences

such as sickness) – the answer is, it depends. In Canada Post Corp. v. C.U.P.W. (1993) the arbitrator


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referenced several cases before stating that in most cases, absences associated with work related

injuries are not to be considered unless the employer can show that an employee had susceptibly

engaged in an activity (either at home or work) which exposed them to the likelihood that another

injury would occur. The arbitrator went as far as to give an example based on Canada Post

Corporation v. C.U.P.W. (Jonah) (1990, para 10):

If there had been evidence that the [employee] had a propensity to engage in activity either at

work or at home which exposed her to the likelihood of injury at work, such as [an employee]

with a record of back problems helping co-workers to move a heavy object resulting in

another back injury, it might have been patently [reasonable] to [consider the absences].

Thus, it is important for employers to ensure they have an efficient means for accurately

tracking and recording compensable work related injuries (e.g. early safe return-to-work programs,

procedures, policies, etc.), so that in such cases, there is appropriate documentation to support using

these absences as part of an employee’s past attendance record.

Furthermore, it can be said that employers should be vocal in objecting to claims it believes

to be non-compensable; whereas once accepted and upheld by a recognized compensation board or

commission, these absences are generally not permitted to be used as part of an employee’s past

attendance record for purposes of non-culpable absenteeism termination (with the exception of that

which was previously discussed in paragraph one of this section). However, if deemed non-

compensable these absences are generally permitted to be used as part of an employee’s past

attendance record; this is supported by Sault Area Hospital v. C.A.W. - Canada, Local 1120

(Thomson) (2010).

A search of Labour Spectrum (using several different search terms / phrases) was

unsuccessful in locating other similar, recent cases. Thus, further research and monitoring of

Canadian jurisprudence in this area is recommended.


9

Demonstrate a poor prognosis for improvement in the future

The second traditional test requirement that an employer must meet is to demonstrate an

employee has a poor prognosis for improvement in the future. In Pasteur Merieux Connaught

Canada v. C.E.P (1998) it was determined that an employer may look at the past attendance record

of an employee (along with other factors) to conclude whether or not an employee may be capable of

regular and / or acceptable attendance in the future. This was originally shown in Canada Post Corp.

v. C.U.P.W. (1993, para 27) (a frequently referenced case on this topic in Canadian jurisprudence)

when it was stated:

While the initial onus of proof of inability to attend regularly at work both in the past and in

the future is on the employer, in the absence of an explanation by the employee of past

absences which is consistent with a good prognosis for future attendance, or evidence that

otherwise establishes such a good prognosis, an arbitrator is entitled to draw an adverse

inference from the past record of absenteeism as to the likely prognosis for future attendance.

More recent cases, such as Alberta Health Services (Calgary Area) v. Health Sciences

Association of Alberta (Paramedical Professional / Technical Unit) (2010), Telecommunications

Workers Union v. Telus Communications (2010) and Sault Area Hospital v. C.A.W.-Canada, Local

1120 (Thomson) (2010) all support the statement that employers must demonstrate an employee has

a poor prognosis for improvement in the future when terminating for non-culpable absenteeism in a

unionized environment.

However, although this is true, it alone may not be sufficient in supporting a non-culpable

absenteeism termination. Using past attendance simply shifts the onus from the employer to the

employee; and if the employee or its representative can present an explanation or information to

support a prognosis for improvement in the future, the onus again shifts back to the employer to

show why this may not be the case (Ontario Public Service Employees Union, n.d.). In Pasteur

Merieux Connaught Canada v. C.E.P. (1998); the employee and its representative could not present

such an explanation; thus the onus did not shift back to the employer and the case was ruled in the

employers favour.


10

In summary, employers must be prepared to not only demonstrate why an employee has a

poor prognosis for improvement in the future, but should also be prepared to counter argue any

explanations or information it expects may be brought forward. In the next section I will review

what, if any, post-discharge evidence may be brought forward by an employee or its representative.

Considering post-discharge evidence

The supreme court ruling in the case of Compagnie Minière Québec Cartier v. United

Steelworkers of America, Local 6869 (1995) has arguably limited the use of post-discharge evidence

for the purposes of showing a good prognosis for improvement in the future. In the case, the

Supreme Court found that an arbitrator should be able to decide if and when an employer had

sufficient cause to terminate an employee; and that events subsequent to such should only be

considered if they are relevant in determining whether there is sufficient cause for terminating an

employee. The Supreme Court stated that in this particular case the arbitrator exceeded his

jurisdiction by permitting the usage of post-discharge evidence.

The above does not mean that post-discharge evidence can never be considered; however,

when it can be considered is restricted. Recently there have been several cases where arbitrators

have considered post-discharge evidence in their decisions (even after consideration of the

restrictions applied by the Supreme Court); these cases include Brewers Distributors Ltd. v.

Distillery Workers Union, Local 300 (1998) and Fraser Lake Sawmills v. I.W.A.-Canada, Loc. 1-

424 (Turcotte) (2000) (National Office of the Industrial, Wood and Allied Workers of Canada,

2001). In the latter case, the arbitrator allowed post-discharge evidence and stated, “I find that the

medical evidence proffered is relevant to shed light on the ‘reasonableness and appropriateness of

the dismissal under review at the time it was implemented’” (Fraser Lake Sawmills v. I.W.A.-

Canada, Loc. 1-424 (Turcotte), 2000, p. 186).


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In the case of U.F.C.W., Local 342P-2 v. Dawn Food Products (Canada) Ltd (2005, para 30)

Judge Laing of the Saskatchewan Queen’s Bench stated that the arbitration board had previous

evidence that the employee was certified as being medically fit / cleared to work; however, the

employee continued to have absences from work for several months thereafter. Thus when the board

was presented with new evidence to this respect, it likely felt it was not relevant, whereas previous

evidence to the same did not result in improvement. Thus, the judge ruled that the exclusion of such

evidence was seen to be reasonable.

In the above case, the employee and its representative wished to bring forward post-discharge

evidence to support a prognosis for future improvement; however this was denied based on the fact

that previous documentation supporting an improved prognosis did not result in improvement.

Employers should carefully document employee wellness information (e.g. medical certificates, job

match reports, functional assessments, etc.) and be prepared to use it for similar arguments.

Post-discharge evidence remains a contentious issue to this day; according to Alberta Health

Services v. H.S.A.A. (Thomson) (2010), “there has been a lively debate in the labour arbitration

community and in the Courts about whether post-discharge events can or should be considered in

assessing the reasonableness of a discharge.” Whereas Canadian jurisprudence in this area is still

evolving, it is recommended that employers and researchers continue to monitor considerations

around post-discharge evidence in relation to non-culpable absenteeism terminations.

Other considerations

Warning employees when absenteeism is of concern / excessive

Outside of the two traditional test requirements that an employer must meet, another

important consideration - based on recent Canadian jurisprudence - is whether or not an employee

has been warned that their level of attendance is of concern and / or considered excessive.

…the jurisprudence does require that employers satisfy a number of other conditions prior to

dismissal. One such condition is that the employee be given sufficient warning that his or her


12

continued record of absenteeism could lead to dismissal (Alberta Health Services (Calgary

Area) v. Health Sciences Association of Alberta (Paramedical Professional / Technical Unit),

2010, para 70).

In the case of Canada Post Corp. v. C.U.P.W. (1993) the employer argued that only culpable

absences, by their nature, can be reduced by warning. However the judge stated this argument was

not in-line with Canadian jurisprudence; the judge went on to quote from Canada Post Corp. v.

C.U.P.W. (Hall) stating, “It is well accepted that the initial onus rests with the Corporation to show

that the employee's past record of absenteeism is excessive, has not improved despite warning, and

that there is nothing on the record to suggest only a temporary aberration (Emphasis added.)” (1991,

para 39). It was inferred that when there is a warning, that an employee’s non-culpable absences

may improve (e.g. by avoiding situations that may lead to sickness), and if not, there may at least be

greater support for the employer’s conclusion that an employee is incapable of improvement in the

future. Furthermore, it was stated that, “a warning will be evidence that the employer genuinely

believed itself to be adversely affected in its operations by the employee's record of absenteeism”

(Canada Post Corp. v. C.U.P.W., 1993, para 13). Thus, warning an employee serves a dual purpose:

it warns the employee; and it may be used to show that an employer feels it is being faced with

hardship. Undue hardship will be discussed further in the section entitled, Duty to Accommodate.

Some of the above arguments surrounding warning employees was more recently referenced

and used in Alberta Health Services (Calgary Area) v. Health Sciences Association of Alberta

(Paramedical Professional / Technical Unit). In this case it was stated that, “the Court explained the

duty to warn as a necessary step to be taken by the employer in order to establish that the employee

can no longer carry out his or her duties in a regular and dependable way…” (2010, para 73).

Further to the above, it is also important to note that should an employer wish to use a period

of time for consideration of absences, such time may only start from the first warning. For example,

if an employee had excessive absenteeism for the past five years and they were only warned to such

one year ago; then for the purposes of termination for non-culpable absenteeism, the period of time


13

that can be considered may be just one year. This is supported by Canada Post Corp. v. C.U.P.W.

(1993) when it is stated, “warnings are relevant not only for the reasons I have already given but also

because they serve to identify the period to be considered legitimately by the Arbitrator. The

comments I made earlier about warnings justify that circumscription of the relevant period, or at

least justify the conclusion that, if it is erroneous, the error is not patently unreasonable” (para 20).

Thus, for all of the reasons discussed above, it is important that employers recognize the need

for warning employees surrounding their levels of absenteeism from the moment it becomes a

concern. However, is it enough to just let an employee know that their level of absenteeism is of

concern?

In Canada Post Corp. v. C.U.P.W. (1993), there is dialogue surrounding the previous

arbitrator who heard the case, and how they felt past warning letters may not have been sufficient.

The previous arbitrator commented that although the letters stated the employee’s attendance was

considered to be unacceptable, neither of the letters advised the employee that their sick leave was

‘excessive’ or told them what pattern of attendance would be acceptable. The judge goes on to state,

It is not clear to me what the Arbitrator had in mind as to what the letters should have said.

[…] I assume that he meant that the letters should have warned the Grievor specifically that

she must avoid excessive use of sick leave, the standard of excess being by comparison with

the average of other employees in the [work area]. While I have some doubt that I would

have found the warning letters to be deficient, I cannot say that it was unreasonable on the

Arbitrator's part to adopt the position he took, much less that it was patently unreasonable on

his part to do so (para 23).

Thus, in consideration of the above, it may still be advisable for employers to use language

such as ‘excessive’ rather than ‘of concern’ or ‘unacceptable’ in regard to warning an employee

about their level of absenteeism. Further support to such can be found upon review of Alberta

Health Services (Calgary Area) v. Health Sciences Association of Alberta (Paramedical Professional

/ Technical Unit) (2010, para 72). Thus, although language such as ‘of concern’ or ‘unacceptable’

may be adequate, it may still be advisable for employers to use stronger language; failing to do so

could have implications (i.e. reinstatement of a terminated employee) if ignored.


14

Employers may also wish to look at attendance management programs and / or policies to

ensure that employees deemed to have excessive absenteeism are properly addressed. A properly

structured attendance management program and / or policy should help to build legal defensibility

through demonstrated validity and reliability (Mehrens & Popham, 1992 and Professional Testing

Inc., 2006). It should help by ensuring that all employees with excessive levels of absenteeism are

promptly addressed (e.g. employee assistance programs, accommodation, documentation, etc.) and /

or warned; which will also be beneficial in any subsequent case arising from a non-culpable

absenteeism termination. For ‘rules’ from Canadian jurisprudence on acceptable innocent

absenteeism / attendance management policies, employers may wish to review paragraph 18 of

U.F.C.W., Local 342P-2 v. Dawn Food Products (Canada), Ltd. (2005) and paragraph 75 of Alberta

Health Services (Calgary Area) v. Health Sciences Association of Alberta (Paramedical Professional

/ Technical Unit) (2010) for more information.

Human rights law

Many employers are hesitant to terminate an employee who may be covered under human

rights law. However, as stated in Pasteur Merieux Connaught Canada v. C.E.P (1998), “there is

nothing in the Human Rights Code that prohibits an employer from terminating an employee on the

basis of innocent absenteeism. The Code prevents discrimination, it does not prevent a termination

of employment.” Thus, as long as an employer has not discriminated against an employee covered

under human rights law, and they have accommodated to the point of undue hardship (which will be

discussed further in the section entitled, Duty to Accommodate), they can safely terminate the

employee like they would any other individual. Let us now consider language from cases involving

human rights law and non-culpable termination.

According to Alberta Health Services (Calgary Area) v. Health Sciences Association of

Alberta (Paramedical Professional / Technical Unit), (2010, para 36) “Under human rights law, an


15

employee alleging discrimination must establish a prima facie (meaning an on first appearance) case

of discrimination.” The onus then shifts from the employee to the employer to justify or negate the

alleged discriminatory conduct. This is done by satisfying a traditional, three-part test, made popular

by British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Johnson)

(1999, para 36):

(1) that the employer adopted the standard for a purpose rationally connected to the

performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that

it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate

work-related purpose. To show that the standard is reasonably necessary, it must be

demonstrated that it is impossible to accommodate individual employees sharing the

characteristics of the claimant without imposing undue hardship upon the employer.

If an employer passes the above three tests, they may proceed with terminating an employee

for non-culpable absenteeism as they would for any individual (assuming they have accommodated

to the point of undue hardship - which will be discussed further in the section entitled, Duty to

Accommodate). Another important consideration is that employees covered by human rights law

should not be held to a higher standard than any other employee. This became evident in a 1996

decision of the divisional court between the Government of Ontario v. OPSEU. In this case, an

employee covered by human rights law was reinstated after being terminated for failing to meet the

terms set out in a last-chance agreement. The employee was reinstated because the last chance

agreement held the employee to a higher standard for attendance than it held other active employees

in the workplace to (Emond Harnden LLP, n.d.).

Furthermore, if absenteeism numbers being relied on for purposes of non-culpable

absenteeism termination are attributable to a disability, it is important that employers be prepared to

show that it has accommodated the employee to the point of undue hardship (Emond Harnden LLP,

n.d.). This will be discussed further in the section entitled, Duty to Accommodate.


16

In review of the above information, it is advisable that employers take a proactive approach

in reviewing their practices and standards to ensure that they comply with human rights law, and

rules as defined by current Canadian jurisprudence. This should help to ensure validity and

reliability of standards; thus building legal defensibility for future cases (Mehrens & Popham, 1992

and Professional Testing Inc., 2006). Furthermore, employers should ensure they understand their

duty to accommodate.

Duty to accommodate

The National Office of the Industrial, Wood and Allied Workers of Canada (2001) state:

The “duty to accommodate” requires employers and unions to accommodate individuals

protected under Human Rights legislation up to undue hardship. This means that, for

example, a worker with a disability, who cannot do a particular job, must be considered for

alternate and/or modified work before termination can be considered.

The Canadian Human Rights Commission (2007) defines duty to accommodate as being:

[The] obligation to meaningfully incorporate diversity into the workplace. The duty to

accommodate involves eliminating or changing rules, policies, practices and behaviours that

discriminate against persons based on a group characteristic, such as race, national or ethnic

origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status,

family status and disability.

Sometimes, workplaces have rules, policies, practices and behaviours that apply equally to

everyone, but which can create barriers based on an irrelevant group characteristic. For

example, if you require that employees wear a certain uniform, you may create a barrier to

someone whose religious practice requires a certain manner of dress.

The duty to accommodate requires employers to identify and eliminate rules that have a

discriminatory impact. Accommodation means changing the rule or practice to incorporate

alternative arrangements that eliminate the discriminatory barriers.

Thus, prior to terminating an employee for non-culpable absenteeism, if / once an employer

becomes aware of the need to accommodate, they must ensure they perform the following steps as

recommended by the Canadian Human Rights Commission (2007):

• determine what barriers might affect the person requesting accommodation,

• explore options for removing those barriers, and

• accommodate to the point of undue hardship.

Also, rather than waiting to be notified, many proactive employers practise asking employees

if there are any accommodations and / or supports they can offer to assist their employees. This may


17

be done in general one-on-one meetings or for specific meetings set to discuss attendance concerns

(once / if identified). In the case of West Fraser Mills Ltd. v. United Steelworkers of America, Local

1-1937 (Severance Pay) (2010), the judge recognized such as a request as being a letter from the

employer to employees inviting them to provide medical evidence relevant to their ability to return-

to-work (employers should be careful to only ask for information they are privy / entitled to).

In the case of Pasteur Merieux Connaught Canada v. C.E.P. (1998), although no duty to

accommodate arose through human rights law, the employer attempted to accommodate the

employee anyhow by placing the employee in work situations that would minimize absences and

disruption to others. However, in the end the employee was let go. The judge stated:

This employer has accommodated each and every one of the [employee’s] ailments, through

short term leaves and modified work assignments. The Employer also gave the grievor new

assignments to help encourage him. The Employer also offered the grievor many types of

services and programs to try to remedy the situation. This employer has repeatedly counselled

the grievor and put him in a situation of clear notice that his absenteeism was jeopardizing his

employment. The Employer clearly spelled out the expected attendance levels and gave the

grievor an explicit target in October 1997 at a "final warning meeting". The [employee] knew

he had six months to meet that target. He was given the full six months despite the fact that

he had already far exceeded the target by February 1998.

The Employer also has the right to expect regular attendance and cannot be faulted for

terminating the grievor after having tried so long in so many different ways to accommodate

the [employee’s] personal needs.

This raises the question of what is undue hardship. Let us consider this in the next section.

For more information on emerging issues in attendance management, duty to accommodate and

employees’ obligations in cooperating with accommodation, see the summary from Emond Harnden

LLP (n.d.) in Appendix A.

What is undue hardship?

The Canadian Human Rights Commission (2007) defines undue hardship below:

Undue hardship describes the limit, beyond which employers and service providers are not

expected to accommodate. Undue hardship usually occurs when an employer or service

provider cannot sustain the economic or efficiency costs of the accommodation.

There is no formula for deciding what costs represent undue hardship and there is no precise

judicial definition of “undue hardship.” However, remember that “undue hardship” implies


18

that some hardship may be involved in the duty to accommodate. Employers and service

providers are expected to exhaust all reasonable possibilities for accommodation before they

can claim undue hardship.

Section 15 (2) of the Canadian Human Rights Act (1985) states undue hardship exists when

it is “established that accommodation of the needs of an individual or a class of individuals affected

would impose undue hardship on the person who would have to accommodate those needs,

considering health, safety and cost.”

The above is further reflected in recent Canadian jurisprudence as shown in Syndicat des

Employé-e-s de Techniques Professionnelles et de Bureau d'Hydro-Québec, Section Locale 2000 v.

Hydro-Québec (2008). The latter case was heard before the Supreme Court of Canada. In paragraph

16 is was stated, “The test is not whether it was impossible for the employer to accommodate the

employee's characteristics. The employer does not have a duty to change working conditions in a

fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the

employee's workplace or duties to enable the employee to do his or her work.” Other key quotes

from the case worthy of note for employers include:

• because of the individualized nature of the duty to accommodate and the variety of

circumstances that may arise, rigid rules must be avoided (para 17).

• If a business can, without undue hardship, offer the employee a variable work

schedule or lighten his or her duties -- or even authorize staff transfers -- to ensure

that the employee can do his or her work, it must do so to accommodate the

employee (para 17).

• in a case involving chronic absenteeism, if the employer shows that, despite measures

taken to accommodate the employee, the employee will be unable to resume his or

her work in the reasonably foreseeable future, the employer will have discharged its

burden of proof and established undue hardship (para 17).

• the test for undue hardship is not total unfitness for work in the foreseeable future. If

the characteristics of an illness are such that the proper operation of the business is

hampered excessively or if an employee with such an illness remains unable to work

for the reasonably foreseeable future even though the employer has tried to

accommodate him or her, the employer will have satisfied the test. In these

circumstances, the impact of the standard will be legitimate and the dismissal will be

deemed to be non-discriminatory (para 18).

• The employer's duty to accommodate ends where the employee is no longer able to

fulfill the basic obligations associated with the employment relationship for the

foreseeable future (para 19).


19

Further to the above, a more recent case in 2010 used the above statements for its own

consideration and stated, “Her rate of absenteeism had reached the point of undermining the

employment relationship. She had been accommodated in her position yet her absenteeism

continued at unacceptable levels. Any further toleration of such absenteeism would have been an

undue hardship on the [employer]. In Hydro-Quebec , supra, the Supreme Court of Canada dealt

with the standard for assessing such undue hardship” (Sault Area Hospital v. C.A.W.-Canada, Local

1120 (Thomson), 2010, para 53).

It would appear based on the above high profile cases, that there is finally some clarity for

employers around duty to accommodate and undue hardship in Canadian jurisprudence.

Collective agreement language

In Canadian jurisprudence, arbitrators and judges must consider language pertaining to

collective agreements within their decisions. However, it is important to note that such collective

agreement language does not trump legislation and / or human rights law. This is supported in

Canadian jurisprudence by Alberta Health Services (Calgary Area) v. Health Sciences Association

of Alberta (Paramedical Professional / Technical Unit) where it states, “Collective agreements must

also be interpreted in a manner which incorporates fundamental rights granted to employees under

labour, employment and human rights legislation. The collective agreement is effectively modified

by the incorporation of such legislation” (2010, para 74). This is further supported by Parry Sound

(District) Welfare Administration Board v. O.P.S.E.O., Local 324 (2003, para 36-37) - which was

heard by the Supreme Court of Canada.

Also, of note is the case from Pasteur Merieux Connaught Canada v. C.E.P. (1998). The

union argued that the employee was entitled to the benefits of the short-term disability plan under the

collective agreement. They argued it would be unfair for the employer to terminate the employee

based on absences they were entitled to. The judge later concluded that although this was a


20

provision in the collective agreement, it did not entitle the employee to be absent on a regular basis –

was not a license for absenteeism. It was also stated that there was no other case that offered support

for such an argument in Canadian jurisprudence (Ontario Public Service Employees Union, n.d.).

Additionally in, Alberta Health Services (Calgary Area) v. Health Sciences Association of

Alberta (Paramedical Professional / Technical Unit) (2010, para 80) it stated that although a clause

of the collective agreement did not specifically mandate that a meeting was required, it was

obligatory that it be interpreted in relation to human rights and labour law. In this case, it was said

that labour law would have mandated that the employee be given union representation whereas their

rights were at significant risk of being impacted by the employer’s decision.

Thus, it can be said that collective agreement language cannot be considered in a vacuum;

regardless of whether one or more sides may agree or disagree, human rights and labour law

supersede over collective agreement language based on Canadian jurisprudence.

Conclusions and future research directions

Many Canadian employers struggle to manage employee absenteeism in a unionized

environment; of particular concern to many employers’ surrounds non-culpable absenteeism

terminations. This paper has shown that although scholarly research literature may be limited on the

subject, a review of Canadian jurisprudence and associated literature from professionals and

practitioners can still reveal valuable insights, considerations and take-a-ways for employers.

The key considerations and implications in this paper evolved around: the two traditional test

requirements that employers must meet (e.g. demonstrate a history of excessive absenteeism and

demonstrate a poor prognosis for improvement in the future); the requirement to warn employees

when their attendance is excessive; the three-part test to justify alleged discriminatory conduct (re:

human rights law); expectations under duty to accommodate; the test for undue hardship; and finally

the fact that human rights and labour law supersede collective agreement language.


21

Due to limitations, the researcher was unable to perform a complete, comprehensive review

of all available Canadian jurisprudence for this paper. In the future, it may be advisable for

researchers to build upon findings within this paper to construct a more comprehensive document

that employers and others can utilize on the topic of employee absenteeism in the unionized

environment.

Furthermore, this paper did not review specific legislation pertaining to provincial or

territorial public sector(s); as was identified in the scope. In the future, a review of such legislation

may identify further insights / anomalies surrounding Canadian jurisprudence in specific

jurisdictions. This would help to further identify considerations and implications for employers,

who may be inimitably affected and impacted by such language.


22

References

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A

Appendix A – Emerging issues in attendance management

Documents

Non-culpable absenteeism terminations in a unionized environment v Final 2.0