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									Schedule 2 Employers’ Group
Attendance Management and the Law

September 30, 2009


                                         David W. Brady
                                           Hicks Morley
                                       Tel: 416 -864-7310
                                      Fax: 416 -362- 9680
                     Email: David-Brady@hicksmorley.com
I THE McGILL CASE (SCC) (2007)
FACTS
•   Unionized employee
•   Terminated – chronic absenteeism
•   Unsuccessful RTW attempts




Attendance Management and the Law
                                       2
FACTS (Cont’d)

•   At arbitration, totally disabled, prognosis
    indeterminable
•   Accommodated by Hospital – CBA provisions
    flexibly applied




Attendance Management and the Law
                                                  3
McGILL – DESCHAMPS JUDGEMENT

“…there is no doubt that an employer may
 establish bona fide measures to ensure
 employees’ regular attendance.” (para. 18)




Attendance Management and the Law
                                              4
McGILL – DESCHAMPS JUDGEMENT

•   Accommodation
     “… parties to a collective agreement have a right to
      negotiate clauses to ensure that sick employees
      return to work within a reasonable period of time.”
      (para.18)




Attendance Management and the Law
                                                            5
McGILL – DESCHAMPS JUDGEMENT

•   Accommodation
     “…the establishment of a maximum period of time for
      absences is thus a form of negotiated
      accommodation.” (para. 18)




Attendance Management and the Law
                                                           6
McGILL – DESCHAMPS JUDGEMENT

•   Undue Hardship
     •   Collective agreement provisions are relevant, not
         determinative




Attendance Management and the Law
                                                             7
McGILL – DESCHAMPS JUDGEMENT

•   Undue Hardship
     •   Assessment to determine if “undue interference in the
         operation of the employer’s business” has occurred.
         (para. 20)




Attendance Management and the Law
                                                                 8
McGILL – DESCHAMPS JUDGEMENT

•   Undue Hardship
     •   Assessment must be global “…starting from the
         beginning of the absence.” (para. 33)




Attendance Management and the Law
                                                         9
McGILL – DESCHAMPS JUDGEMENT

•   Undue Hardship
     •   A “global” assessment is one which does not
         compartmentalize an employee’s various health
         problems. (para. 33)




Attendance Management and the Law
                                                         10
McGILL – DESCHAMPS JUDGEMENT

•   The Employee’s Role
     •   must be reasonable
     •   if critical of a proposed employer accommodation –
         has an onus of proof




Attendance Management and the Law
                                                              11
McGILL – ABELLA JUDGEMENT

•   Discrimination
     •   Workplace requirements “…cannot disadvantage an
         individual by attributing stereotypical or arbitrary
         characteristics.” (para. 48)




Attendance Management and the Law
                                                                12
McGILL – ABELLA JUDGEMENT

•   Discrimination
     •   Preventing discrimination is achieved “…by
         preventing the exclusion of individuals from
         opportunities…based not on their actual abilities, but
         on attributed ones.” (para. 48)




Attendance Management and the Law
                                                                  13
McGILL – ABELLA JUDGEMENT

•   Discrimination
     “not every distinction is discriminatory…” (para. 49)




Attendance Management and the Law
                                                             14
McGILL – ABELLA JUDGEMENT

•   Discrimination
     “It is the link between that [protected] group
       membership and the arbitrariness of the
       disadvantaging criterion…that triggers the possibility
       of a remedy.” (para. 49)




Attendance Management and the Law
                                                                15
McGILL – ABELLA JUDGEMENT

•   Discrimination
     •   Time-defined collective agreement provisions
         respecting health related absences…




Attendance Management and the Law
                                                        16
•   Are NOT arbitrary in the human rights context
    because “they do not unfairly disadvantage
    disabled employees because of stereotypical
    attributions of their ability.” (para. 56)




Attendance Management and the Law
                                                    17
McGILL – ABELLA JUDGEMENT

   •   Discrimination
           “The length of time provided by the negotiated
             clause must be assessed in the context of the
             nature of the employment and other relevant
             factors, to determine whether a prima facie case
             of discrimination is established.” (para. 59)




Attendance Management and the Law
                                                                18
McGILL – ABELLA JUDGEMENT

•   Discrimination
     •   Held – no discrimination occurred in the case.




Attendance Management and the Law
                                                          19
McGILL – ABELLA JUDGEMENT

•   Just Cause
     “Non-culpable absenteeism, including the failure to
      achieve a reasonable degree of attendance because
      of illness, is accepted arbitral jurisprudence as a just
      cause for dismissal.” (para. 62)




Attendance Management and the Law
                                                                 20
McGILL – ABELLA JUDGEMENT

•   Just Cause
     “This does not target individuals arbitrarily or unfairly
       because they are disabled;…




Attendance Management and the Law
                                                                 21
   “…it balances an employer’s legitimate expectation
    that employees will perform the work they are paid
    to do…




Attendance Management and the Law
                                                         22
   “…with the legitimate expectations of employees with
    disabilities that those disabilities will not cause
    arbitrary disadvantage.” (para. 63)




Attendance Management and the Law
                                                          23
McGILL – Attendance Management Lessons

1. Each case must be determined on its own facts




Attendance Management and the Law
                                                   24
Lessons (cont’d)

2.   Collective agreement provisions are relevant
     factors in assessing the duty of reasonable
     accommodation




Attendance Management and the Law
                                                    25
Lessons (cont’d)

3. Collective provisions cannot be applied
   mechanically




Attendance Management and the Law
                                             26
Lessons (cont’d)

4.   Ask the question:
       Are individuals being excluded based upon their actual
          abilities, or on attributed ones?




Attendance Management and the Law
                                                                27
Lessons (cont’d)

5. The fundamental contract of employment –
   work, including regular attendance at work,
   for remuneration - anchors the analysis in
   all discrimination and duty to accommodate
   cases




Attendance Management and the Law
                                                 28
II THE HYDRO-QUEBEC CASE (SCC) (2008)
FACTS
• Unionized employee
• Terminated – chronic absenteeism (960 days
  over approx. 8 years)




Attendance Management and the Law
                                               29
FACTS (cont’d)

•   Variety of physical and mental medical problems
    – personality disorder
•   Accommodated by the Employer over the years




Attendance Management and the Law
                                                      30
FACTS (cont’d)

•   At arbitration, medical evidence – prognosis
    doubtful regarding regular attendance at work




Attendance Management and the Law
                                                    31
HYDRO-QUEBEC – DESCHAMPS FOR THE
UNANIMOUS COURT
Balancing Interests
   “…the Court must consider the interaction between
    the employer’s duty to accommodate a sick
    employee and the employee’s duty to do his or her
    work.” (para. 1)




Attendance Management and the Law
                                                        32
HYDRO-QUEBEC

•   The Issue
     •   The interpretation and application of the undue
         hardship standard




Attendance Management and the Law
                                                           33
HYDRO-QUEBEC

•   The Standard
     •   In cases where an employer seeks to apply a
         standard, the standard must be applied “with
         common sense and flexibility.” (para. 12)




Attendance Management and the Law
                                                        34
HYDRO-QUEBEC

•   Accommodation
     “…the goal of accommodation is to ensure that an
      employee who is able to work can do so…




Attendance Management and the Law
                                                        35
HYDRO-QUEBEC

   “…The purpose of the duty to accommodate is to
    ensure that persons who are otherwise fit to work
    are not unfairly excluded where working conditions
    can be adjusted without undue hardship.” (para. 14)




Attendance Management and the Law
                                                          36
HYDRO-QUEBEC

•   Accommodation
     “The test is not whether it is impossible for an
       employer to accommodate the employee’s
       characteristics.” (para. 15)




Attendance Management and the Law
                                                        37
HYDRO-QUEBEC

•   Accommodation
     “The employer does not have a duty to change
       working conditions in a fundamental way.”
       (para. 15)




Attendance Management and the Law
                                                    38
HYDRO-QUEBEC

•   Accommodation
     •   The employer “…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.” (para. 15)




Attendance Management and the Law
                                                                39
HYDRO-QUEBEC

•   Accommodation – Burden of Proof
     “In a case involving chronic absenteeism, if the
       employer shows that, despite measures taken to
       accommodate the employee,…




Attendance Management and the Law
                                                        40
HYDRO-QUEBEC

   “…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)




Attendance Management and the Law
                                                        41
HYDRO-QUEBEC

•   Accommodation – Reasons for Dismissal
     “It is less the employee’s handicap that forms the
       basis of the dismissal than his or her inability to fulfill
       the fundamental obligations arising from the
       employment relationship.” (para. 18)




Attendance Management and the Law
                                                                     42
HYDRO-QUEBEC

•   Accommodation
     “The employer’s duty to accommodate ends when the
       employee is no longer able to fulfill the basic
       obligations associated with the employment
       relationship for the foreseeable future.” (para. 19)




Attendance Management and the Law
                                                              43
HYDRO-QUEBEC

•   Undue Hardship – The Evidence
     In the case, where
        •   “the employee has been absent in the past due to
            illness,…




Attendance Management and the Law
                                                               44
HYDRO-QUEBEC
      •   “…the employer has accommodated the employee
          for several years and…




Attendance Management and the Law
                                                         45
HYDRO-QUEBEC
      •   “…the doctors are not optimistic regarding the
          possibility of improved attendance,…




Attendance Management and the Law
                                                           46
HYDRO-QUEBEC
      •   “…neither the employer nor the employee may
          disregard the past in assessing undue hardship.”
          (para. 21)




Attendance Management and the Law
                                                             47
HYDRO-QUEBEC – Attendance
Management Lessons
1. As in McGill, the assessment of the duty of
   reasonable accommodation begins with the
   fundamental employment contract – work for
   remuneration




Attendance Management and the Law
                                                 48
Lessons (cont’d)

2. The purpose of the duty to accommodate is to
   arrange the employee’s workplace or duties to
   enable the employee to perform the essential
   duties of the job




Attendance Management and the Law
                                                   49
Lessons (cont’d)

3. Establishing standards to monitor employee
   attendance is a responsibility of the employer
   for the management of its workforce.




Attendance Management and the Law
                                                    50
Lessons (cont’d)

4. Workplace standards must be reasonable and
   must be applied with common sense and
   flexibility




Attendance Management and the Law
                                                51
Lessons (cont’d)

5. “The employer’s duty to accommodate ends
   where the employee is no longer able to fulfil
   the basic functions associated with the
   employment relationship for the foreseeable
   future.” (para. 19)




Attendance Management and the Law
                                                    52
Attendance Management Programs –
Recent Challenges
•   City of London arbitration – July 27, 2009
•   City of Hamilton arbitration – August 6, 2009




Attendance Management and the Law
                                                    53
Schedule 2 Employers’ Group
Disability Management in Unionized Workplaces

September 30, 2009



                                          David W. Brady
                                             Hicks Morley
                                      Tel: 416 -864-7310
                                      Fax: 416 -362- 9680
                     Email: David-Brady@hicksmorley.com

								
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