Absenteeism & Attendance
BC Court of Appeal finds Coast Mountain Bus Company's Attendance Management Program to be discriminatory
In a decision issued on October 15, 2010 - Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada
(CAW-Canada), Local 111, 2010 BCCA 447 - the BC Court of Appeal found Coast Mountain Bus Company's Attendance Management Program to be discriminatory.
Discriminatory to dismiss for non-culpable absenteeism months before severance obligations triggered
The decision by the BC Human Rights Tribunal ("Tribunal") in USWA v. Weyerhaeuser, 2009 BCHRT 328 is important and worth reviewing for two key reasons:
- It re-affirms that employers can terminate the employment relationship for innocent or non-culpable absenteeism and provides some guidance on how this can be done through a formal "termination program"; and
- It is a reminder to employers that they can be found to have contravened human rights legislation if they treat employees on disability leave different than active employees when addressing severance entitlements at the time of a permanent closure.
The United Steel-Workers Association, Local 1-423 (the "Union") filed a representative complaint with the Tribunal alleging that four of its members (the "Employees") were discriminated against with respect to their employment, on the basis of physical and mental disability, contrary to section 13 of the BC Human Rights Code (the "Code"). read more »
In a decision issued a few weeks ago - Coast Mountain Bus v. CAW-Canada, 2009 BCSC 396 - the BC Supreme Court found that Coast Mountain Bus' Attendance Management Program (AMP) did not amount to systemic discrimination and that the monitoring of absences of employees who are regularly off work is a bona fide occupational requirement (BFOR). In doing so, the court overturned much of the BC Human Rights Tribunal's February 2008 decision on the matter.
Coast Mountain's predecessor company had first introduced the AMP in 1997. It applied to all of the company's employees, including its approximately 3,000 unionized transit operators.
The AMP had previously been the subject of a labour arbitration in 2000. Subsequent to the arbitrator's award - which allowed certain aspects of the grievance - the union filed a complaint with the BC Human Rights Tribunal (BCHRT). read more »