llness and Absenteeism.com - December 2015 Newsletter

In this edition you will find:

A.  Feature Case: A Saskatchewan arbitrator rules that employee emails on an employer’s email server are to be treated as private and inadmissible even though the employer’s use policy explicitly stated that they were not private and could be accessed by the employer.        [Click here]

B.  Recent Decisions of General Interest:

1. An arbitrator upheld an employer’s requirement that the employee provide a certification from a psychiatrist attesting to his physical and psychological fitness to return to work.    [Click here]

2. The Personal Information Protection Act of British Columbia was not applicable where the employer was seeking pre-hearing production of documents from an employee whose credibility was at issue.[Click here]

3. A British Columbia arbitrator held that an employer erred when it terminated three employees who would never be able to return to work because of illness without having considered each case based on its own unique circumstances.    [Click here]

4. In finding that an employee had been improperly terminated on the basis of innocent absenteeism, the arbitrator eliminated from consideration absences that could be found to amount to a disability along with those that were not attributable to unpredictable, sporadic illnesses.[Click here]

5. When administering a discretionary leave clause, an employer must exercise its discretion in a reasonable fashion. This includes considering each case on its own merits.[Click here]

 

 


A.  Feature Case: Saskatchewan arbitrator rules that employee emails on an employer’s email server are to be treated as private and inadmissible even though the employer’s use policy explicitly stated that they were not private and could be accessed by the employer.      

In Saskatchewan Government and General Employees Union, 2015 CanLII 28482 (Ponak), the employee, who was employed as a Labour Relations Officer for SGEU, was terminated after he allegedly became a known associate of a motorcycle club, and, while employed, breached the SGEU’s Information and Technology Policy and its Code of Conduct.

The employee had access to a substantial number of government work places where he was responsible for representing union members. He interacted with managers who supervised the employees he represented. Many of these worked in Correction Services.

Immediately prior to his termination, the SGEU was advised by one of its elected officials that the employee had been involved in a bar fight while wearing “biker patches.” The employee denied that he was affiliated with a motorcycle club. The SGEU then learned from the Ministry of Justice that a police force had informed it that the employee was believed to be involved in an ongoing criminal investigation and that, effective immediately, he was being denied access to all provincial correctional facilities. The SGEU immediately arranged to review all emails that were sent or received through the union’s computers. Upwards of thousands of emails were reviewed that day, with the focus being the attached photos rather than the contents of the emails. The photos satisfied the SGEU that the employee was a member of a motorcycle group and that he had lied about his affiliation. He was immediately terminated.

His union, Unifor, objected to the employer’s attempt to introduce emails between the employee and his wife that the employer had obtained by searching its email server.

The SGEU had a detailed Information Technology policy that stated that the SGEU’s computers were to be used solely for SGEU business; that messages were neither confidential nor private; and that all files or messages were the property of the SGEU.

The arbitrator found that the emails were not admissible on the basis that the privacy rights of the employee outweighed the business needs of the employer.

His reasoning is by no means flawless.

On the issue of privacy of the email system, the arbitrator first noted:

On its face, [the] policy leaves little doubt where the Employer stands with respect to use by its employees of its email system. The IT system and anything on that system belongs to the SGEU and is meant for work purposes only. While not outright banning the use of the system for incidental personal purposes, employees are put on notice that personal use is at their peril as nothing on the system should be viewed as confidential or private and may be accessed by the Employer. This policy goes a long way towards reducing any reasonable expectation of privacy that an employee may have.

The arbitrator however went on to state, without providing a sound rationale, that the policy did not extinguish an expectation of privacy, for there was some allowance in the policy for incidental personal use, even if indirectly, as personal use is ‘neither explicitly denied or explicitly approved,’ and that it was almost impossible to conceive that some personal use would not occur.

The arbitrator then asked, given that some incidental personal use would be likely to occur, whether the SGEU could “still claim the right to examine these emails at will?” He concluded that they could not:

Regardless of what its policy says, the answer must be no. Employees do not automatically lose any right to privacy simply because they happen to send or receive a personal email on the employer’s email system. Cole [R. v. Cole (2012) SCC 53 (CanLII)] is clear in this regard when it says that written policies are not determinative of a person’s reasonable expectation of privacy. Neither is ownership as long as it is unreasonable to expect that no personal emails will find their way onto a business email system (Cole paragraph 51).

[It should be noted that in Cole, the Supreme Court of Canada found that while the employee had a reasonable expectation of privacy in files kept on his-employer-issued work computer, that expectation was modified by the fact that the employee knew that the employers information technologists would access the computer to maintain the school’s information network. Note further that the primary issue there was whether information on the employer’s computer could be accessed by the police without a warrant, and if so, whether it was nevertheless admissible in a criminal proceeding pursuant to section 24 of the Charter. The Cole decision is considered in sections 1:103, 12:304 and 12:503 of the Illness and Absenteeism manual and its supplement.]

Arbitrator Ponak concluded that an employer may however, in certain cases, examine employee emails on an employer’s server:

This does not mean that an employer never has the right to examine an employee’s personal mail that is found on an employer’s server, especially when it has clearly served notice that it can and will do so. However, the examination of personal emails, which is properly characterized as a search of information that may be highly personal and sensitive, is subject to the Doman tests. The search must be reasonable in the circumstances and carried out in a reasonable manner. As well, while not necessarily the last resort, a search that is very intrusive on privacy ought not to be the first resort either, especially if reasonable alternatives exist to acquire the information being sought.

The arbitrator accepted that “probable cause” existed for an investigation of the employee, but carrying out a search of the email system would require “a high degree of justification and the absence of reasonable alternatives.” He commented on the fact that some of the emails were from the employee’s wife and that such communications between husband and wife are by definition, “the most intimate and personal of all communications.” He also considered that it was relevant that some of the communications were found in the employee’s deleted items, for in the arbitrator’s view, this signaled further “that these emails were not intended to be viewed by others.”

In conclusion, the arbitrator stated:

I am satisfied on balance that this degree of intrusion into the Grievor’s emails was a violation of the Grievor’s reasonable expectation of privacy in communications between himself and his wife. It constituted an unreasonable search that cannot be justified given the facts at the time it was conducted. These emails are therefore inadmissible as evidence in this arbitration.

The reasons make no reference to decisions, including one from the Supreme Court of Canada, that have held that evidence that is relevant is generally admissible even though it was improperly obtained. Those decisions are considered in section 12:400 of the Illness and Absenteeism manual and its supplement.

 
 

B.     Recent Decisions of General Interest

 1. An arbitrator upheld an employer’s requirement that the employee provide a certification from a psychiatrist attesting to his physical and psychological fitness to return to work.

In Winnipeg (City), 2015 CanLII 20490 (MB LA) (Harrison), the issue was whether the employer was entitled to require an employee to provide confirmation from a psychiatrist certifying that he was physically and psychologically fit to return to work.

The employee was considered to be quick to anger, and at the time of the latest incident, had become enraged in the work place. His supervisors considered that the escalation that had occurred might well lead to an incident of workplace violence. The employee was advised that until the medical assessment had taken place, he was relieved of his duties and was not to return to the worksite.

The union contended that the employer could not “unilaterally require an employee to participate in a medical examination that is being performed by a medical practitioner that is not of the employee’s choosing”, which in this case, was a psychiatrist under contract to the employer.

The employee did not attend the initial or any of the re-scheduled psychiatric appointments. During the course of subsequent discussions, the employer advised the employee that while the employer was prepared to facilitate an expeditious psychiatric evaluation, the employee was “free to seek an assessment from an appropriate medical professional, that being a physician (psychiatrist) of [the employee’s] choice,” with the medical certification being subject to review and assessment by the employer.

The employer received no further reports and the employee did not return to work. The arbitrator stated that she was satisfied that the employer had legitimate concerns and reasonable and probable cause to question the employee’s fitness and to believe that the employee presented a risk to the health and safety of himself and others in the workplace. The union had argued that the employer’s failure to suspend the employee for the first five or six shifts after the initial confrontation was indicative that the employer did not really consider that the employee’s conduct posed a serious or actual risk to health and safety. The arbitrator acknowledged that while the delay was troubling, it did not establish the union’s contention.

The grievance was dismissed on the basis that the employer had reasonable cause to request the sought-after medical assessment.  

An employer’s entitlement to seek a medical assessment is addressed in Chapter 7 of the Illness and Absenteeism manual.   

 

 2. The Personal Information Protection Act of British Columbia was not applicable where the employer was seeking pre-hearing production of documents from an employee whose credibility was at issue.

In Board of School Trustees of School District No. 43 (Coquitlam), 2015 CanLII 28425 (BC LA) (Sanderson), the arbitrator issued an addendum to an earlier award dealing with the production of text messages. The union had opposed the employer’s request on the basis that it contravened the Personal Information Protection Act of British Columbia. The arbitrator rejected that contention:

I find that the IPA has no direct application where the grievor’s credibility, as is the case here, is in issue at an arbitration hearing and the employer is seeking pre-hearing production of documents which are potentially relevant to the proper disposition of his grievance.

The Order that issued was comprehensive and far-reaching, with it including provision of copies of all relevant text messages as well as deleted messages and possible backup records, which could include those available on a computer, an external hard drive, the “cloud” or any other memory storage device. The employee was to provide his cell phone, and any others that he had owned or used in the previous four months, to an identified forensic expert for the purpose of imaging the phone(s) and providing the employer with copies of text messages that fell within certain enumerated categories. In the event that any relevant text messages were deleted, the arbitrator was to be provided with information concerning when and how they were deleted. The Order directed that the employee not destroy any potentially relevant evidence, including any records related to the requested text messages. Finally, if the employee was now utilizing a different telephone than the one that he earlier claimed to have, he was ordered to provide particulars of what happened to the phone that he claimed to have along with the whereabouts, type and serial number (or other unique identifier) of the phone that he was using.

Pre-hearing production of documents is considered in detail in Chapter 10 of the Illness and Absenteeism manual and its supplement

 

 3. A British Columbia arbitrator held that an employer erred when it terminated three employees who would never be able to return to work because of illness without having considered each case based on its own unique circumstances.

In Langley (Township), 2015 CanLII 21505 (BC LA) (McPhillips), the union alleged that three employees who were receiving LTD benefits had been improperly discharged for non-culpable absenteeism. The termination had no impact on their vested LTD benefits, but it did result in the loss of their extended health, dental and group life insurance benefit plans. The three employees had been absent for at least six years and their conditions were such that they would never be able to return to work. Employees on LTD did not receive pension credits for the period of their absence and no pension contributions were made on their behalf.

The collective agreement provided that employees could apply for a leave of absence, with their application being assessed “based on the circumstances and merit of each application.” Where an extended leave was granted, the employee could extend their medical and dental benefits by paying their share of the benefit premiums. Some of those who were terminated had extended their benefits and were submitting premiums to the employer on an ongoing basis.

The employees who were terminated were given five weeks written notice that their employment would be terminated for non-culpable absenteeism unless they provided “a current and credible medical opinion that [they were] likely to return to work on a regular basis in the foreseeable future with, or without, workplace accommodation.” They were informed that their benefit plan participation (other than their LTD benefits) would cease on termination but that they could convert certain of their other group benefits into an individual insurance contract.

The employer acknowledged that “a termination cannot occur if the benefits lost by a terminated employee are ‘grounded in the illness’ from which the employee suffers,” but it asserted that, absent a contrary provision in the collective agreement, “an employer cannot be prevented from terminating an employee for non-culpable absenteeism merely because the employee’s access to other benefits, which are payable to all employees whether disabled or not, would be denied.”

The employer acknowledged that the employees were disabled but stated that no accommodation could be made, short of undue hardship, to return the employees to the workplace.

The arbitrator began his analysis by stating that the two labour relations tests for discharge for non-culpable absenteeism had been met. In this case, “there has been undue absenteeism on the part of the three Grievors and it is accepted that none of them will be able to attend work in the future.” That distinguished this case from others where there was some doubt as to whether the employees would be able to return at some future point.

The arbitrator summarized the law as stating that “the existence of other benefits, unrelated to the disability, which are available to all employees because of their employment status, does not fetter management’s right to terminate employees for non-culpable absenteeism.” That was the case here, subject to there not being an express prohibition in the collective agreement limiting the employer’s right to discharge for non-culpable absenteeism or restricting that right as long as the employee “retains employee status and certain benefits are due …”

The arbitrator reviewed several cases where the language of the particular agreement either precluded or enabled non-culpable termination in cases of excessive absenteeism. He concluded that there was no express provision in this collective agreement that linked the benefits to continuing while on LTD. Additionally, there was no evidence of “a clear, unequivocal and widely known past practice with respect to treatment of employees on LTD that could be used to clarify an ambiguity in the collective agreement.”

The union had also advanced an estoppel argument but it was rejected on the grounds that there was insufficient evidence which could form the basis of an estoppel.

The parties had agreed that the terminations, which resulted from the employees’ disabilities, amounted to prima facie discrimination. That being the case, the question became whether the employer had established a bona fide occupational requirement. The arbitrator employed the tests set out by the Supreme Court of Canada in Meiorin and concluded that the employer had not established a bona fide occupational requirement:

We turn next to whether the employer has established a bona fide occupational requirement. The tests the Employer has to meet in that regard were set out by the Supreme Court of Canada in Meiorin [1999 CanLII 652 (SCC)] at para. 54:

(1) it adopted the standard for a purpose rationally connected to the performance of the job;

(2) it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship …

In finding that the employer had not met the standard, the arbitrator stated:

There are a number of concerns about the “standard” which was applied by the [Employer]. The first observation is that the Employer had no policy in place with respect to when the employment relationship would be considered to have ended. There was certainly no pre-determined measure or standard for determining when the employment relationship would cease for employees who were on LTD and who would never be able to return to work … This was not a case of an employer making a decision based on the characteristics of an individual’s situation. This was a blanket conclusion that applied to a number of employees in different circumstances and it was not based on any particular rule or policy that had been established and was well known to the employees.

It appears from the evidence that the Employer made a decision to save money on benefit premiums … and decided to use non-culpable absenteeism as the rationale to do so. Just as in West Fraser Mills Ltd. [2012 (B.C.C.A. 50], the true motivation for the termination of the three Grievor's was not really the cessation of the employment relationship but rather the desire on the part of the [Employer] to avoid payment for benefit plans. There was certainly no evidence or explanation of any other factor which was considered by the [Employer]. In my view, a mere desire to save money does not automatically constitute a BFOR and that is the conclusion drawn by the Court of Appeal in West Fraser Mills Ltd. That is not to say that the consideration of monetary savings is, in itself an indication of bad faith or malice. … However, that being said, the monetary purpose alone does not constitute a blanket defense for an employer and other considerations must be taken into account.

It must be concluded that the actions of the [Employer] in the circumstances of the case were arbitrary in that the Employer simply decided to terminate all the grievor's at a random point in time ... There was no frustrating event … that these employment relationships can be said to have ceased at that time. This was not an occasion when medical evidence indicated an employee would not be able to return to work or when the Employer determined that the employee’s job would be posted. There was nothing that happened which in any way altered the situation which had existed for years … Put another way, there was no diminishment of the employment relationship at that point in time.

In addition, the employees, who had been absent for different periods of time, were terminated without regard to those differences. The arbitrator stated that in his view, the disparate treatment, “which was significant and substantial among these disabled employees, was inequitable.” The employer had not established a bona fide occupational requirement and therefore the terminations were discriminatory.

The arbitrator then considered the Supreme Court of Canada’s decision in Hydro-Quebec, 2008 SCC 43 (CanLII), where the Court found that “in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonable foreseeable future, the employer will have discharged its burden of proof and established undue hardship.” The arbitrator here stated that on that basis, “the duty to accommodate would have been fulfilled in the present circumstances …"

Nevertheless, the arbitrator then found that the terminations were discriminatory and that the terminated employees were entitled to be reinstated and made whole.

The issue of termination for non-culpable absenteeism is addressed in section 17:300 of the Illness and Absenteeism manual and its supplement.

 

 


 4. In finding that an employee had been improperly terminated on the basis of innocent absenteeism, the arbitrator eliminated from consideration absences that could be found to amount to a disability along with those that were not attributable to unpredictable, sporadic illnesses.

In Edmonton (City), 2015 CanLII 50592 (ON LA) (Kanee), an employee of eight years was terminated for non-culpable absenteeism. The parties agreed that

In order to support a termination for non-culpable absenteeism, an employer must establish that:

1) the employee’s absenteeism was excessive;

2) the employee was warned that his employment was in jeopardy if his excessive absenteeism persisted;

3) it is unlikely the employee will attend work regularly in the future; and,

4) if the absenteeism was caused by an illness or disability, the employer accommodated the employee to the point of undue hardship.

The union’s objections to the employee’s termination focused on the third and fourth elements of the analysis.

In the result, the arbitrator upheld the grievance and reinstated the employee to his transit operator position.

The employer’s Attendance Management Program (AMP) set forth four levels of attendance. Although the Program did not expressly say so, the employer acknowledged that absences for which employees received long term disability benefits and absences while in receipt of workers’ compensation benefits were not included in calculating standards for absences or monitoring employee attendance. No explanation was offered for treating these absences differently from others.

When the employee was terminated, he was at the final level of the program and had received written notice that failure to attain an acceptable level of attendance might result in the non-disciplinary termination of his employment. At the time of his termination, his 12 month rolling absence record reflected ten incidents and 66 lost shifts. Prior to considering termination, the employer checked with its Disability Management Consultant and confirmed that the employee was not then suffering from any disability-related condition. However, the employer did not speak with the employee nor did it request any additional medical information.

In considering whether the employee’s absence record was excessive, the arbitrator noted that “the impact that absences have on the workplace is a relevant consideration in assessing whether a record of absences is excessive.” He also noted that while employers have a legitimate interest in monitoring and managing employee absences, “a unilaterally imposed attendance management program may not circumvent an arbitrator’s role in assessing whether, in all of the circumstances, an employer had just cause to terminate an employee for innocent absenteeism.”  He accepted that the program was “relevant to, but not a substitute for, an arbitrator’s application of the accepted principles of innocent absenteeism.”

After having considered several arbitral principles, the arbitrator formulated his task in a manner that went beyond those established principles:

Accordingly, our task is not simply to determine if the grievor exceeded the absenteeism standards set by the City and confirm that the AMP was properly administered. Rather, we are required to determine whether, in all of the circumstances, the grievor’s absences were so excessive and imposed such a burden on the City, that termination was justified.

The union conceded that the employee was warned that his excessive absenteeism could lead to termination.  

In considering whether the employee’s absenteeism was excessive, the arbitrator noted that:

The authorities suggest that once an employer has proven an employee’s excessive absenteeism, it is entitled to rely on the employee’s record of absences to invite an inference to be drawn that the employee will be unlikely to attend work regularly in the future. The onus then falls upon the employee to refute the inference and to convince the arbitrator that, despite the prior record, he will be able to attend work regularly in the future.

The case cited in support of the foregoing proposition stated that where this inference is to be rebutted, “it is for the grievor to provide evidence to persuade the [arbitrator] that there is a reasonable basis to believe that the past record will not necessarily continue into the future, and where that explanation relates to medical matters, to support the grievor’s view with appropriate expert medical corroboration.”

After noting a decision where the arbitrator stated that an employee’s past record of absences is a more reliable predictor of future absences where the record is one of intermittent and unexplained rather than long term absences, this arbitrator then referenced a passage from the decision which had stated:

The appropriateness of relying on an inference that past experience is the best guide to the future is more obvious where the past absences are intermittent and unexplained. It is not so obvious when the grievor is away due to a long-term disability …

The arbitrator then stated that “not every record of excessive absenteeism will, on its own, shift the onus of proof from the employer to the employee regarding the likelihood of regular attendance in the future. It will depend on the nature of the illnesses, the timing of the illnesses and the improvement, if any, in attendance over the relevant period of time.”

Having said that, the arbitrator appears to have placed the onus squarely on the employer. In considering the absences during the last quarter prior to termination, the arbitrator noted that the reasons given by the employee for these absences were pneumonia, “chest” and bronchitis. The employee was not spoken to and no additional information was requested of him. The arbitrator accepted the employee’s testimony that he had no serious health issues since his termination and that he did not feel that he had any current health issues that would prevent him from regular work attendance. No comment was made regarding the failure of the employee to adduce any medical evidence or corroboration regarding these matters.

In considering the employee’s absences over the final four and one quarter years of employment, the arbitrator appeared to discount absences that were not attributable to “unpredictable, sporadic illnesses.”

The arbitrator also commented that he could not say that it was unlikely that the grievor would be able to achieve acceptable attendance in the future. Without referencing the attendance standards that were set out in the program, he went on to say:

By [having reached that conclusion], we do not necessarily mean that the grievor will necessarily achieve the AMP standard representing the average number of absences and incidents of others in his classification. But it is likely that he could achieve reasonable levels of attendance and not impose any significant hardship on the City’s operations.

The arbitrator then discounted absences that could be said to amount to a disability. While noting that the employee had not sought accommodation, the arbitrator stated:

If the City relied upon the grievor’s absences due to disability to terminate his employment, “that termination is unlawful unless continuing the grievor’s employment creates an undue hardship. In this case, the City does not claim undue hardship so it may not rely on the absences due to disability to justify termination … The City should not have relied on the grievor’s absences due to disability to justify his termination as it had not endured any undue hardship accommodating those absences.

It will be noted that the employee was not disabled at the time of his termination, and the question of undue hardship relates not to the question of whether the employer will be significantly damaged by retaining an employee who will be unable to work on a regular on-going basis, but rather whether the employee’s disabling illnesses can be accommodated to the point of undue hardship in order to facilitate the employee’s performance in a different or revised role.    

The arbitrator stated that if disability-related absences (carpal tunnel syndrome and acute stress disorder) were removed from consideration, the employee’s record of absenteeism over the last four plus years was reduced to an average of approximately 15 plus shifts in the first four years and 26 shifts in the three month period that followed.

In proceeding as he did, the arbitrator stated that his reasoning did not mean “that an employer may never terminate employment for innocent absenteeism. However, in order to avoid a finding of discrimination it must establish that it has accommodated the disabled employee to the point of undue hardship before termination. One form of accommodation is to tolerate excess absences caused by disability. However, at some point the absenteeism may severely hamper the employer’s operations or it may be abundantly clear that the employee will not be able to return to work in the foreseeable future despite the employer’s efforts to accommodate and at that point the termination will be viewed as non-discriminatory.”

The arbitrator’s approach does not reflect the arbitral law. A physical or mental disability which this arbitrator would exclude, would most certainly include periods of absence due to an incapacitating injury (whether having occurred in or outside of the workplace), absences due to a significant health issue, such as a back or heart condition, high blood pressure, cancer or other serious illness and absences attributable to stress or other mental health issues. To exclude all of these conditions, in the absence of an agreement between the parties, would mean that the only type of legitimate absences that could be considered in determining whether the employee’s absenteeism had been excessive would be routine illnesses such as influenza, colds, minor headaches and toothaches. On the other hand, absences due to migraine headaches and dental surgery might, depending on evidence subsequently presented at the termination hearing, be found to amount to a disability. To proceed as this arbitrator has suggested would clearly introduce new and unsupportable elements in considering whether a termination for innocent absenteeism was justified. Moreover, it would compel employers to have to engage in a process of requesting medical evidence and then having to determine if each absence was, or subsequently could now be considered to have been, disability-related. This would create an unnecessarily contentious process that would prove to be moot in cases where the employee’s absenteeism either improved or never reached the point of being excessive.  It would also be likely to turn the arbitration into an omnibus hearing where various medical professionals would be called upon to testify as to whether both recent and distant absences could be said to amount to a disability that should be discounted in considering the employee’s level of absenteeism. 

The employer’s nominee delivered a well-reasoned dissent that touched on many of the foregoing points.

The issue of termination for innocent absenteeism is considered in Chapter 17 of the Illness and Absenteeism manual and its supplement.            

 

 

 5. When administering a discretionary leave clause, an employer must exercise its discretion in a reasonable fashion. This includes considering each case on its own merits.

In Ontario (Attorney General), 2015 CanLII 47772 (ON GSB) (Dissanayake), the adjudicator considered a discretionary leave clause where employees could apply for paid leave upon special and compassionate grounds:

[The employer] may grant an employee leave of absence with pay for not more than three (3) days in a year upon special and compassionate grounds.

The granting of leave under this article shall not be dependent upon or charged against accumulated credits.

The employee requested that her absence on the day of an expected ice-storm be treated as a paid absence. Only three out of some 200 such employees had requested such leave. The employee’s request was denied on the basis that the employee did not make a satisfactory effort to attend at work.

The employer had, subsequent to having made its decision to deny the request, offered to allow the employee to use a vacation day to cover her absence. This offer was not part of the decision making process. The arbitrator found that an offer made in these circumstances was not inappropriate.

The employer’s conclusion that the employee had not made a reasonable effort to attend work had not considered her particular circumstances. Rather, it had relied on two primary factors; that many buses were running that day and many employees had been able to attend work. The adjudicator stated that those conclusions amounted to “an unreasonable assumption made without any factual basis.”

While many buses in the city may have been running, the employer had no information that there were buses running on a route that would have enabled the grievor to travel from her residence to her workplace. The grievor had informed that buses were not running due to the ice-storm. The employer made no attempt to verify whether the grievor had bus service to travel to work. Similarly, it had no information whether or not any of the employees who reported to work faced the difficulties the grievor faced, such as a power failure and resulting inability to shower or prepare a meal. There is no indication that it had any information as to where the other employees lived, whether bus or other public transportation was available to them, or whether they had other alternate options such as staying with friends or relatives closer to work. Without any of this information, simply because some buses were running and because other employees were able to report to work, the employer jumped to the conclusion, despite the information provided by the grievor about the difficulties she personally faced, that she also could have attended work. That was not a reasonable exercise of its discretion. The employer ignored the grievor’s own circumstances.

The grievance was allowed.

Discretionary leaves of absence are considered in section 7:202 of the Illness and Absenteeism manual and its supplement