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Tribunal Finds Attendance Management Program Discriminatory
March 10, 2008

In a recent decision the British Columbia Human Rights Tribunal has ruled that an employer’s comprehensive attendance management program (“AMP”) resulted in systemic discrimination of employees with chronic or recurrent disabilities. The decision departs from prior arbitral and Labour Relations Board jurisprudence upholding similar attendance management programs.

The employer took the position that the AMP was not discriminatory as it was flexible in its application to disabled employees and provided expressly for accommodation. The Tribunal found that chronically ill employees unable to meet attendance expectations experienced stress on becoming subject to the AMP. The Tribunal concluded that accommodation was not fully considered at the early stages of the AMP. Further, the employer failed to consider amending attendance standards applied to employees with chronic or recurrent disabilities. As a result, the employer was required to consider modifying its attendance standards before considering accommodating employees in alternative positions.

The Tribunal found there was no evidence that it was not possible to accommodate chronically disabled employees’ excessive absenteeism without undue hardship.

The Tribunal ordered the employer to cease and desist its application of the AMP to employees with chronic or recurring disabilities; awarded damages for injury to dignity to named employees who had testified in the case; and ordered the employer and the union to participate in mediation at the Tribunal to discuss revisions to the AMP consistent with the principles in the decision.

Harris & Company will be holding a half-day seminar to discuss this case, and the implications it may have on attendance management programs in the future. Please visit our website under Upcoming Seminars for more information.

National Automobile, Aerospace, Transportation and General Workers of Canada (CAW – Canada) Local 111 v. Coast Mountain Bus Company (No. 9), 2008 BCHRT 52