The British Columbia Supreme Court has overturned a decision of the British Columbia Human Rights Tribunal, which had found that an Attendance Management Program (AMP) used by Coast Mountain Bus Company Ltd. systematically discriminated against employees with chronic or recurring disabilities. This decision is good news for employers, as the Tribunal’s findings had placed onerous requirements on employers seeking to manage attendance problems.
Coast Mountain Bus Company Ltd. (the Employer) employs approximately 3000 transit operators. In response to excessive absenteeism by operators, the Employer introduced the AMP to establish a process to deal with unacceptable levels of absenteeism. Under the AMP, employees are notified of concerns about their absenteeism levels, and are then monitored or progressed through a series of stages. These start with informal discussions and progress to a formal letter setting attendance targets and warning of possible termination if attendance levels are not met.
The union made a representative complaint on behalf of members with disabilities who were placed in the AMP. The union alleged that the AMP discriminates against the operators with respect to their employment on the basis of actual and perceived mental and physical disabilities, contrary to Section 13 of the B.C. Human Rights Code.
The Human Rights Tribunal’s Decision
The Tribunal found that the AMP resulted in systemic discrimination against employees with one or more chronic or recurring disabilities, including finding that:
- the application of the Employer’s AMP to operators with chronic or recurring disabilities was discriminatory;
- placement in the AMP is discriminatory because it creates stress on those placed within it and who receive letters from the Employer as a result;
- the AMP fails to accommodate operators, or delays in so doing; and
- the AMP is not a bona fide occupational requirement.
The Supreme Court of British Columbia
On judicial review, the court applied recent Supreme Court of Canada jurisprudence that is favourable to employers, and overturned all of the above findings of the Tribunal.
Prima Facie Discrimination
For the union to succeed, it had to first establish a prima facie case of discrimination. The Tribunal found prima facie discrimination because the application of the AMP had an adverse impact on persons with “chronic and recurring disabilities,” and the presence of their disability was a factor in the adverse treatment. It was not enough that operators may eventually be accommodated in the later stages of the process, as such an approach “ignores the stress and anxiety experienced by employees who are placed on the AMP” and their frustration when their disabilities are seemingly “ignored.”
The court disagreed, noting that the group of operators in the AMP must of necessity include individuals who have chronic, recurring and perhaps other types of disabilities. These operators were not included because of stereotypical or arbitrary assumptions about people with disabilities, but rather because they have surpassed the number of days’ absence that exceeds the average of their fellow operators. Without a program for monitoring, assessing and accommodating employee absences, an employer is left with an arbitrary approach.
The court found that “there is nothing systemically discriminatory about monitoring employee attendance, or providing warning letters to those whose rate of absenteeism is considered by the [Employer] to be excessive. This does not result in differential treatment based on disability. It is the obligation of the [Employer] to warn its employees of its attendance concerns and the potential consequences of specific absenteeism.”
Bona Fide Occupational Requirement
The Tribunal had found that the AMP was not a Bona Fide Occupational Requirement as:
the Employer did not demonstrate that it was impossible to further accommodate individual employees within the AMP at earlier stages of the program without experiencing undue hardship; and
the Employer did not lead evidence on the specific cost of accommodating individual employees with chronic or recurring disabilities.
The court disagreed, accepting the Employer’s argument that the AMP simply triggers a process, and does not exclude employees from employment or another benefit. The court also noted a recent Supreme Court of Canada decision that had found “the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and the responsibility of the employer for the management of its workforce.”
Lessons for Employers
The Coast Mountain decision is a recent, powerful example of the trial court applying recent Supreme Court of Canada jurisprudence supporting the employer’s rights to: (a) monitor and verify absences, (b) impose reasonable standards of attendance, and (c) apply a standard of accommodation that does not completely alter the employee’s duty to perform work in exchange for remuneration.
Employers with absenteeism problems should:
- Recognize that you have the right to monitor and enforce reasonable attendance, with appropriate accommodation.
- Consider an attendance management program or policy that communicates and applies reasonable attendance standards to employees.
- Recognize that applying that standard to employees, including those with disabilities, is not, in and of itself, discriminatory.