In a British Columbia arbitration, Township of Langley v. CUPE, Local 403, No: A-014/15, the arbitrator was considering a grievance concerning the non-culpable termination of three employees of the Township of Langley who had been absent from work for an extended time on long-term disability.

The employer terminated the employment of the three employees for non-culpable absenteeism as a result of their prolonged absence from work with no expectation they would be able to return to their jobs in the foreseeable future. The termination of the employees did not affect their eligibility to continue their long-term disability claims. It did, however, mean that the employees were no longer eligible for certain other benefit plans including MSP, extended health, dental coverage, and life insurance. The employer had also taken into account the fact that there would be savings in the premiums for the benefit plans to which the employees were no longer entitled.

The arbitrator’s ruling: did terminations constitute discrimination?

At the arbitration, the employer’s position was that it was justified in termination for non-culpable absenteeism based on the usual tests. The employer’s position was that the fact that the terminated employees would lose access to certain other benefits did not remove the right of the employer to terminate the employees for non-culpable absenteeism.

The arbitrator concluded that there was no violation of the collective agreement. He then considered whether the terminations constituted discrimination under the Human Rights Code of British Columbia. In considering the evidence on this issue, the arbitrator stated that:

“The true motivation for the termination of the three grievors was not really a cessation of the employment relationship but rather the desire on the part of the Township to avoid payments for benefit plans. There was certainly no evidence or explanation of any other factor which was considered by the Township”.

The arbitrator concluded that the desire to save money does not amount to a bona fide occupational requirement under human rights legislation. The arbitrator stated that the terminations were not based on a consideration of the individual circumstances of the terminated employees, but rather that all three were terminated at the same time in a manner that was “arbitrary” and directed at cost savings for the employer. The arbitrator said:

“I conclude that in the circumstances of this case the employer has not met the requirement of establishing a bona fide occupational requirement and, thus, its termination of the three grievors…for non-culpable absenteeism was discriminatory”.

As a result, the three employees were reinstated in employment and were to be made whole.

This decision raises important issues about non-culpable termination of employees who are absent from work on long-term disability claims in British Columbia. Under this decision, employers would no longer be able to terminate employees for non-culpable reasons who are absent from work for a lengthy period of time unless the employer can prove that it did not get any financial benefit from the terminations. In most cases, there will be some economic benefit to the employer, and this interpretation of the Human Rights Code will create great uncertainty in those terminations.

The decision has been appealed to the Labour Relations Board but that appeal is being held in abeyance because the issue was also appealed to the British Columbia Court of Appeal, which will hear this matter on September 14 and 15, 2016.