March 8, 2018

Note: This Article is based in part on Canada (Attorney General) v. Bodnar, 2017 FCA 171 and is inspired in part by an article submitted by Adrian Miedema of Dentons on September 15, 2017.

Most front line supervision and managers will agree that when attendance becomes a problem, attendance management can introduce a frustrating and uncomfortable part of the job.

The image above is provided in jest, is light-hearted and can represent a small aspect of how on the surface, employees and employers can feel about work attendance management. In reality, a more accurate reflection would be akin to the age-old tip of the iceberg analogy.

In the first instance, there is the necessary and human need to be empathetic, supportive, and hands-off, particularly as absences represent a very core intersection between work and teammates’ private lives. Many managers are properly reluctant to rush into this space and generally do not do so unless there is a legitimate business need.

Paradoxically, more aggregate information can lead to less intrusiveness. Metrics are required to be hands-off and to focus and intervene where focus and intervention are required.

For the same reasons for managers and supervisors, attendance management is often one of the more uncomfortable spaces for employees and union representatives to occupy. When parties “dig in” to their advocacy roles, too much focus and debate can be directed towards differing perspectives on what can be done (or shared) versus what must be done. This disproportionate focus on the part of advocates is often to the detriment to the very employee(s) and the employer(s) they are representing.

A recent case confirms that data collection and inclusion of culpable, non-culpable, and even human rights protection-related absences; can be used as part of an overall attendance management plan so long as the collection is delinked from pre-determined consequences.

For example, multiple management response streams must be in place to address

  1. culpable absence (through a disciplinary process),
  2. non-culpable but non-HR protected issues (through attendance management), or
  3. human rights protected issues (which would necessarily need to be managed through an accommodation management response stream).

I would argue there are multiple combinations and/or hybrid approaches of the above that need to be carefully implemented in many cases. Those who have administered a number of these files know that individuals and their behaviour do not necessarily fit neatly into one of the (3) three categories above.

Be sure to:

  • document,
  • show your work, and
  • be thoughtful and explicit in your approach;

particularly if applying a combination or hybrid of the three above-noted streams.

The case Canada (Attorney General) versus Bodnar reviewed a grievance of an attendance management policy that counted non-culpable and human rights protected absences for both attendance-rate averaging and “flagging” purposes to activate an appropriate management response stream.

Attendance Management Policy (in Brief):

The policy required supervisors to monitor attendance patterns that may arise under their purview, such as employees missing patterns of particular days (i.e. on Friday, Monday, or after payday) or exceeding the rolling 12 month average of shifts missed among their peer group.

The attendance management program was designed and intended to be non-disciplinary.

If it was determined the absences were culpable, that individual would be removed from the attendance management stream and managed under the normal disciplinary process.

If the absences were the result of situations related to a Human Rights protected category (i.e. disability and family status), those files were removed from the attendance management program. Human rights protected absences were addressed through a managed accommodation process.

Lower Board Decision:

The Federal Public Sector Labour Relations and Employment Board (“the Board”) (it is worthwhile noting the Board is viewed as an expert tribunal) found that the employer policy was discriminatory.

This was because it included statistics and trigger thresholds for absences related to Human Rights status protected grounds (predominantly physical and mental ability and family status); to flag individuals for potential inclusion into formalized attendance case-management.

Issues Arising from Appeal:

  1. Standard of Review (the standard of correctness was applied in respect to the prima facie case of discrimination finding by the Board and the effect of amalgamating protected and non-protected leave entitlement/obligations, and a standard of reasonableness was applied to the balance of the decision),
  2. Whether the Board erred in finding a prima facie case of discrimination by including all absences in the calculations of the attendance management program,
  3. Whether the Board erred in amalgamating HR protected leave entitlements with other leave entitlements, which has the effect of expanding human rights protection status to non-protected leave entitlements and attendance instances.

In a strong statement and within the context of the reasonableness test deference afforded to expert tribunals, the Court found the Board failed to establish proof of adverse impact by a claimant and “…unreasonably found that the respondents had made out a case of prima facie discrimination in the absence of any proof of adversity.”

“Indeed, it is difficult to imagine how an attendance management plan…could ever function if an employer were required to subtract all absences due to disability from the group average as the reasons for an absence are not always immediately apparent, and employees’ medical conditions may well evolve and worsen from a transitory illness to a disability. It is thus difficult to conceive how a bright line could be drawn in a timely way between absences due to disability and those due to other reasons for calculating an…average absence rate. “
“Likewise, nothing adverse flowed under the [policy] from including absences due to disability or for family-related leave in the total number of days an employee was absent for purposes of simply determining if the employee exceeded the relevant peer group threshold.”
“…there is nothing untoward in tasking supervisors with ensuring the legitimacy of employee absences.”

The Court found that not only is it not contrary to human rights to gather the statistics on all absences, but it is also, in fact, necessary to have a functioning attendance management plan. The Court further confirms the ability for supervisors and managers to verify employee absences’ legitimacy through the normal course of managing their team.

With this understanding, we can debate less on what can be done (in terms of testing absence legitimacy and gathering metrics) and focus instead on what needs to be done to manage attendance within the appropriate management response stream.

Where the rubber hits the road is in respect to having structured, multiple response streams tailored to address culpable, non-culpable and human rights protected absences administered:

  • with prudence,
  • in a dignified manner,
  • on a case-by-case basis.

Submitted by,

Sam Kemble,

Director – Workforce Delivery and Labour Relations

sam@workforcedelivery.com

(780) 886-1679

www.workforcedelivery.com