Workers should not be penalized for taking time off work for things that are out of their control, such as illness or family emergencies.
This is what an adjudicator ruled in the case of eight PSAC members who were penalized after being absent for family and disability-related matters.
The decision found that Correctional Service Canada’s attendance management program discriminated against employees on the basis of family status and disability.
“This is an important victory,” said PSAC National President Robyn Benson. “People need to take care of family emergencies and should not be punished for doing so.”
CSC implemented a National Attendance Management Policy in 2011 and the stated goal was to “help employees by assuring their attendance is improved.” The program measured average attendance rates. If employees had absences that were higher than average, then they were placed on “attendance monitoring.” There were progressive disciplinary steps built into the program if absenteeism continued.
The adjudicator found that the attendance program systemically discriminated against employees who required leave based on disability and family status. The employer did not provide a reasonable explanation or establish a bona fide occupational requirement to justify the discrimination.
Program is discriminatory
The adjudicator found:
- The employer deliberately included absences for sick leave and family-related leave in the calculation of the attendance threshold. This was discriminatory because these are related to “prohibited grounds” of discrimination under human rights law.
- The program referred to sick leave patterns and the use of family-related leave while no mention was made of other types of leave available under the collective agreement.
- The employer was applying the program with no discretion, which violates the need to make an assessment of individual circumstances under human rights law.
The adjudicator allowed the grievances and awarded damages for each grievor for pain and suffering and willful or reckless discrimination.
Employer appeals decision
The employer recently filed an application asking the Federal Court to overturn the decision. PSAC plans to fight this appeal.
“The adjudicator made the right decision and we will vigorously defend it. Right now, this decision stands and the employer cannot continue to discriminate," concluded Benson.