Legal News

Requirement to Attend Counseling as Part of Attendance Management not Grievable
September 28, 2012

An Ontario arbitrator recently determinedthat an employer’s requirement that employees attend counseling meetingspursuant to an attendance management policy was not grievable.

The Employer had initiated an attendancemanagement program that differentiated between culpable and non-culpableabsenteeism. Non-culpable absences wereaddressed through non-disciplinary counseling sessions. After four non-disciplinary counselling sessions,the program called for a case review, which involved an evaluation of theemployee’s attendance history and an assessment as to whether the employeewould be able to attend work regularly in the future. If the assessment was not favourable, terminationwas a potential outcome.

The Union grieved the requirement thatemployees attend counselling sessions, arguing that each session pushed thoseemployees closer to the review stage and the potential termination of theiremployment. The Arbitrator rejected thisargument, noting that employers have the right to speak to an employee at anytime about their work performance, absenteeism or any other work relatedmatter. Further, there was no accusationor implication in the requirement to attend the counselling session that theabsence was not legitimate or that the employee was doing anything wrong.

This decision confirms that employershave the right to address attendance issues with employees, including in circumstanceswhere the absence is innocent or related to a disability. However, employers need to be cautious aboutapproaching such absences in a punitive manner.


A link to the decision can be found here.