In a recent arbitration decision, CUPE was successful in challenging Sun Country Health Region’s attendance support program by overturning the termination of a member who was not adequately accommodated.
Legal counsel for Sun Country Health Region argued that it had just cause to terminate the CUPE member for innocent absenteeism, because the grievor exceeded the benchmarks established in its Attendance Support Program. On the other hand, CUPE argued that the grievor’s issues should have been dealt with through the accommodation process rather than in the context of the Attendance Support Program.
In his arbitration award issued October 23, 2017, Arbitrator Dan Ish agreed that the grievor’s absenteeism was excessive, and the there was little prospect for improved attendance prior to dismissal. However, Ish also noted that “there was no question that the grievor had an illness or disability that affected …[their] ability to attend work” - which the Employer was aware of.
“It is likely correct to say that most innocent absenteeism, but not all, is linked to a medical condition of the affected employee that qualifies as a disability and thus gives rise to the duty to accommodate,” noted Ish in reviewing the evolution of the law in this area. “This has major implications for employer promulgated absentee/attendance programs because once the duty to accommodate arises an employer cannot rely upon the strict steps or stages of such a policy or program but must focus directly on the employee’s disability and the employer’s duty to accommodate it. It is a very individualized approach. Thus, once the disability is identified and substantiated, any attendance policy ceases to have application until the disability no longer exists.”
Arbitrator Ish noted a “modest accommodation” of the grievor was undertaken in the spring of 2016, but there was no further attempts by the employer to accommodate the grievor in the fall leading up to the termination of employment.
“While I agree with the employer’s argument that it is an undue hardship to accommodate an employee by permitting them to miss work on an irregular basis, it clearly was known from … previous history that the grievor was suffering mental health problems,” wrote Ish.
“During this period of time, if not earlier in this long saga of excessive absenteeism, an attempt could have been made to further accommodate the grievor. It is difficult, if not impossible, to know what the outcome of such an attempt would be but nevertheless the employer was under an obligation to make an attempt to determine if there may be an accommodation that would work for it and the employee. Instead, no further medical reports were requested of the grievor…”
The arbitration award noted that the employer is entitled to monitor employee attendance through an attendance support program or otherwise, but the duty to accommodate, which is imposed by law, cannot be “subjugated” by such a program. “The duty to accommodate trumps processes and consequences that otherwise might legitimately be imposed by an attendance policy,” wrote Ish.
In upholding the grievance, Arbitrator Ish ordered the reinstatement of the grievor, with no loss of seniority, and directed the parties to undertake further efforts to accommodate the grievor.