Employer adopted 'mechanistic' approach that didn't compare attendance with colleagues
A New Brunswick health authority unjustly dismissed a worker for excessive absenteeism because the employer failed to establish what constituted “excessive,” an arbitrator has ruled.
It’s a case where the employer developed an attendance management program (AMP) with a solid foundation but neglected a few important details, waccording to Anne Amos—Stewart, an employment lawyer at McInnes Cooper in Moncton.
“The key issue in this decision was whether the employee’s absences were excessive, and in making this assessment, the employer’s main problem was the comparator that it had used that led to the termination,” she says. “The employer also failed to provide any evidence at the arbitration about the absenteeism rate of its other employees.”
Attendance management program based on national average
The worker was a health information management professional for Horizon Health Network, a public health authority in New Brunswick.
In 2014, Horizon implemented an AMP that arranged for employees with absenteeism rates higher than a certain benchmark to be placed in the program. The benchmark was calculated from the national average of all paid sick hours reported by health—care organization across Canada divided by the number of employees eligible for paid sick leave. It was set at 80 hours per year in 2014.
Horizon’s AMP had two categories that didn’t count towards the benchmark – a single, significant health incident and a disability — along with four levels of progression through the program. Level 4 could result in progressive discipline or termination.
The worker was placed on the AMP in the fall of 2014 due to absences that exceeded the benchmark, but her attendance improved and she was removed a year later. However, she entered the AMP again in October 2017 because she had been absent on sick leave for 91 hours over the previous year.
Horizon provided a Level 1 letter that said if the worker was experiencing personal or medical problems that affected her ability to attend work, she should take steps to deal with them and could use the employee and family assistance program if necessary. She was also reminded that her absences disrupted the work schedule and could increase her colleagues’ workload.
Levelled up
Six months later, the worker received a second Level 1 letter indicating that she had been absent for 92 hours over the previous 12 months. Her absenteeism remained at that level and, in December 2018, she was moved to Level 2 of the AMP. This involved the possibility of consulting Horizon’s occupational therapist on a voluntary basis.
By June 2019, the worker’s absenteeism levels were about the same, still more than the benchmark, so Horizon placed her in Level 3. Horizon referred her to its occupational health physician and a meeting, where the worker revealed that she was suffering from allergies and sinusitis. She also expressed concern about the air quality, and Horizon told her that the air quality had been tested and found to be good.
Horizon’s AMP seemed to be well-thought-out in principle and provided opportunities for the worker to get support and to improve, says Amos-Stewart.
“The employer did the right thing in terms of working with the employee over a period of time to address her attendance, treating the employee’s absences as non-culpable, and also offering the employee support,” she says.
When the COVID-19 pandemic hit, all in-person meetings were postponed, so the next AMP meeting was delayed until June 2020. At that time, the worker’s absenteeism was still above the benchmark and Horizon was considering moving her to Level 4, but it agreed to extend Level 3 for another three months while she tried out a flex schedule.
Migraines and knee injury
The worker explained that she suffered from migraines that kept her awake at night, and this caused her to call in sick. The flex time schedule would help, but she also said she had a torn ligament in her knee that would probably require surgery, and she was taking antidepressants for anxiety.
On Sept. 22, Horizon moved the worker to Level 4 and indicated that there was a possibility of “non-disciplinary termination for innocent absenteeism” if her attendance didn’t improve. The health authority reiterated that she should provide documentation if any medical issue was affecting her ability for “regular and reliable employment” and a medical certificate for all absences of two or more days.
Over the next three months, the worker was well below the benchmark. She had knee surgery in early 2021 after which she missed nearly three weeks — counted as a significant incident in the AMP — and she missed three other separate days after being tested for COVID-19, which weren’t counted for the AMP.
However, there were other days the worker was sick with what she called “COVID-like symptoms” but were not COVID, for which she didn’t provide medical certificates. These put the worker back over the benchmark, and Horizon terminated her on May 20 for excessive absenteeism.
The union grieved the termination as “unreasonable, without just cause, and an abuse of management rights.” It argued that Horizon had no proof that the worker’s absences were excessive and frustrated her employment.
Read more: A federal employer’s AMP that included family and disability leave was discriminatory: board
Employer onus to prove excessive absenteeism
The arbitrator noted that employers have a right to expect reasonable attendance at work from employees and excessive absenteeism with no reasonable prospect of improvement could justify termination. However, the onus was on the employer to prove that the absenteeism was excessive and unlikely to improve.
The arbitrator also noted that Horizon’s AMP didn’t define what constituted “excessive absenteeism” other than referring to it as a “chronic workplace attendance issue.” The AMP was triggered when an employee’s absences surpassed the benchmark of average sick leave taken by all medical staff throughout Canada — Horizon didn’t track the average of absences of its own employees, said the arbitrator.
The benchmark Horizon used to establish what it called excessive absenteeism was where the AMP fell short, according to Amos-Stewart.
“[Horizon] did treat the concept of ‘excessive’ as a relative one — which was good — but it compared the employee’s absences to a national average that hadn’t been updated since 2014, instead of comparing the absences to other employees of [Horizon] and looking at the employer’s own workplace to assess the absenteeism.”
In addition, Horizon employees in the bargaining unit accumulated sick leave credits of 135 hours per year, so one should expect that excessive absences would be above what was negotiated in the collective agreement, the arbitrator said. According to Horizon’s records, the only year the worker surpassed this total was in 2020, when the pandemic hit and the worker had knee surgery for which her sick leave wasn’t counted for the purposes of the AMP.
‘Mechanistic’ application of AMP
The arbitrator found that Horizon had the right to implement a program to monitor attendance, but what Horizon considered excessive absenteeism wasn’t justified or consistent with the collective agreement. The health authority adopted a “mechanistic” approach to the AMP without considering the particular circumstances, said the arbitrator.
The arbitrator also found that it wasn’t reasonable for Horizon to rely on the national benchmark, which not only didn’t relate to its own employees, but was also implemented in 2014 without any updates since. As a result, Horizon wasn’t able to demonstrate that the worker’s absences were excessive and deserving of termination, the arbitrator concluded.
Horizon was ordered to reinstate the worker without loss of salary, seniority, or benefits.
A key lesson for employers? Have a well-drafted AMP, follow it consistently, and allow for a certain level of discretion regarding individual circumstances — avoiding the mechanistic approach that Horizon adopted, according to Amos-Stewart.
“Ensure that you are comparing apples to apples when it comes to employee absences — in other words, make sure you’re choosing the right benchmark and comparing employees to other similar employees,” she says.
“Because the arbitrator found that the employer had not established that the absences were excessive, there wasn’t a need to address whether attendance would improve in the reasonably foreseeable future in this case – but the lack of reasonable prospect for improvement in the foreseeable future would be important for an employer to establish if it wanted to terminate on the basis of absenteeism.”
See NBUPPE and Horizon Health Network (Connors), Re, 2022 CarswellNB 421.
