City of Edmonton Applicant - v. -, 2017 ABQB 59

Court of Queen’s Bench of Alberta Citation: Edmonton (City) v Amalgamated Transit Union, Local No 569, 2017 ABQB 59 Date: 20170127 Docket: 1503 13460 Registry: Edmonton Between: City of Edmonton Applicant - and - Amalgamated Transit Union, Local No. 569 Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction . 3 Background . 3 Grievor’s employment and absences . 5 Majority Award . 6

Standard of Review .. 7 Errors alleged by the City . 8 A. Were the Grievor’s absences excessive? . 8 1. Different legal test 8 2. Unreasonable assessment of burden . 9 3. Improper removal of disability related absences . 9 4. Unreasonable Assessment of Excessiveness . 9 B. Likelihood of Regular Future Attendance . 10 1. Unreasonably applying a different test 10 2. Breach of procedural fairness . 11 3. Failure to draw refutable inference . 11 4. Unreasonable assessment of excessiveness . 12 (

i) Four ailments . 12 (ii) Linking unrelated absence without medical evidence despite contrary evidence . 12 (iii) Undue reliance on an unreasonable finding of improvement 12 C. Prima facie discrimination . 13 1. Onus and connection . 13 2. Presumption not supported by facts . 14 Grievor’s response . 15 Analysis . 18 A. Were the Grievor’s absences excessive? . 23 1. Wrong test 23 2. Unreasonable finding with respect to the spare board minimizing the burden . 26 3.

Error in removing the first wrist surgery and the acute stress absence from the excessiveness assessment by incorrectly interpreting and/or unreasonably applying the “onus” and/or “connection” components of the test for prima facie discrimination in Part Four of Shelter Regent 27 4. The reasons were inadequate or they were not justifiable, transparent and intelligible to conclude that the record of absences was not excessive having regard to the average number of incidents and absences of co-workers and the case law .. 27 (

i) Grievor’s record compared to co-workers . 28 (ii) Grievor’s record compared to other cases . 28 B. Likelihood of Regular Future Attendance . 28 1. Unreasonably applying a different test 29 2. Breach of Procedural Fairness . 29 3. Failure to draw refutable inference . 31 4. Unreasonable assessment of excessiveness . 32 (

i) Four ailments . 32 (ii) Linking unrelated absence without medical evidence despite contrary evidence . 33 (iii) Undue reliance on an unreasonable finding of improvement 34 C. Prima facie discrimination . 35 1. Onus and connection . 36

2. Presumption not supported by facts . 37 Conclusion . 38 Introduction [ 1 ] This is an application for judicial review of the award of a Labour Arbitration Board decision, Amalgamated Transit Union, Local No. 569 v Edmonton (City) (Stuart Grievance) , [2015] AGAA No 35.

The City of Edmonton argues that the Majority of the Board erred in a number of respects concerning its decision that the City did not have just cause to dismiss the Grievor on the basis of innocent absenteeism. [ 2 ] This application focuses on the City’s Attendance Management Policy (the “AMP”) and its application to the Grievor. [ 3 ] The Board’s Decision was from a grievance filed by the Grievor’s union against the employer under the provisions of the collective agreement between the Amalgamated Transit Union and the City. Background [ 4 ] Few of the facts in this matter are in dispute.

Much of the grievance arbitration proceeded on the basis of an agreed statement of facts. [ 5 ] The Grievor worked for the City as a full-time transit operator from June 5, 2006 to the time of his dismissal on April 1, 2014. His date of birth is August 12, 1952. [ 6 ] Until January, 2010, there was nothing in the Grievor’s attendance record that the City relied on for his termination. In his first four years with the City, the Grievor had a total of 21 incidents and missed 47.5 shifts. [ 7 ] However, starting in January, the City alleges that the Grievor was chronically absent from work.

In characterizing his absences as chronic, the City compares the Grievor’s attendance record with the average attendance of all other City transit operators. [ 8 ] The Grievor’s dismissal in April, 2014 flows from the provisions of the AMP. The AMP is a City policy concerning employee attendance. It is not part of the collective agreement. [ 9 ] It is not clear when an AMP was first implemented by the City. It was updated in June, 2009.

Feedback and suggestions were sought from the unions having bargaining relationships with the City, but the unions did not approve the AMP, nor did it become incorporated into their collective agreements with the City. [ 10 ] The relevant AMP has four levels: Level I – attendance falls within acceptable standards; Level II – attendance suggests an emergency absenteeism concern. Either the number of days or the number of incidents is in excess of acceptable standards; Level III – An identified attendance concern continues.

Absences remain above applicable standards and may be occurring in a distinguishable pattern. Efforts at Level II have failed to significantly improve attendance; and Level IV – Absenteeism persists to the point of termination of employment. [ 11 ] When the AMP was updated in June, 2009, all employees who had been on Level II or Level III under the previous AMP were “given the opportunity to repeat their current level”. [ 12 ] Following implementation of the AMP, the unions having bargaining relationships with the City (including the Amalgamated Transit Union) filed a policy grievance.

That grievance was settled as between the parties to the policy grievance without going to arbitration. Evidence at the grievance arbitration was that the City had confirmed that it would not use absences compensable under the Workers’ Compensation Act to move an employee from one level to another.

That led to the unions withdrawing the policy grievance. [ 13 ] The City’s evidence at the grievance arbitration was that the “acceptable standards of attendance” are based on the average number of days and non-culpable absence in a 12-month period of employees in a similar occupational classification. [ 14 ] All transit operators were classified together. The applicable averages for transit operators in 2010 were three incidents or 15 days absent.

For 2011 through 2014, the standards were three incidents or 13 days absent. [ 15 ] Under the AMP, the employee’s record could not be considered to be excessive unless the employee had been chronically absent in excess of the applicable standard for at least three consecutive years. [ 16 ] The City notes that there was no allegation in the grievance arbitration that any aspect of the AMP was unreasonable or not compliant with law respecting an employer’s right to introduce policies into its workplace. Grievor’s employment and absences

[ 17 ] The Grievor’s absences were reviewed in great detail at the grievance arbitration. Two absences in the Grievor’s record were excluded from consideration in the AMP process. One was the time off relating to wrist surgery on the Grievor’s right wrist (the time off related to wrist surgery on the Grievor’s left wrist was included). The second was an absence covered by the Workers’ Compensation Act . [ 18 ] The Grievor’s record was thus computed as involving 31 incidents versus the average of 13 over the same period of time.

His time off was 136.09 shifts versus the average 58 over the same period of time. [ 19 ] From January 21, 2010 to March 12, 2014, representatives of the City met with and/or counselled the Grievor on 19 occasions. Records were made by the City’s representative at such meetings, detailing what was discussed. [ 20 ] The Grievor was asked on both November 23, 2010 and March 13, 2012 whether he had any disability preventing him from attending work regularly. He responded “no” on both occasions.

It was during one of these counselling meetings that the City representative agreed that the upcoming right wrist surgery would not be used if termination were to be contemplated. [ 21 ] In November, 2010, the Grievor was moved from Level I to Level II. He had missed 32 shifts. The reasons for the eight incidents are flu (chills), stomach problems, flu, twisted ankle, flu, flu and stress, lost a crown, and had a tooth pulled. [ 22 ] At the end of November, 2011, the Grievor’s records show that for the past 12 months, he had seven incidents and missed 15 shifts.

The incidents were for flu, stomach problems, flu, sinus infection, flu, flu, and sinus infection. [ 23 ] In February, 2012, the Grievor was moved from Level II to Level III. Between December 1, 2011 and January 11, 2012, he missed 30 days because of surgery on his left wrist. He returned to work, but missed 2.34 shifts because of another illness. His previous 12 months showed eight incidents and 44.34 shifts missed. [ 24 ] He remained on Level III from February, 2012 until March 29, 2014.

From February, 2012 to February, 2013, there were seven incidents involving sinus pain, food poisoning, a reaction to medication, tachycardia, bronchitis, flu and again flu. Twenty-three shifts were missed. [ 25 ] From February, 2013 to February, 2014 the Grievor missed 58 shifts as a result of eight incidents. One of the incidents was the right wrist surgery, following which the Grievor missed 36 shifts.

The other incidents were for heat exhaustion, hurt back, back problems, two WCB days, pneumonia, flu, and chest problems. [ 26 ] At the beginning of March, 2014, the Grievor missed a shift due to the flu, and then nine shifts because of bronchitis. Following that last incident, his employment was terminated. [ 27 ] Following the termination of employment, the Amalgamated Transit Union grieved the dismissal, leading to the arbitration hearing. [ 28 ] The arbitration hearing was conducted from April 14 to April 16, 2015. The Award was issued on August 7, 2015.

One of the panel members dissented. [ 29 ] The City notes that at the beginning of the hearing, the Union and the City agreed that the Arbitration Board was required to consider and apply the four-part test established by arbitral jurisprudence, specifically Shelter Regent Industries v Industrial, Wood and Allied Workers of Canada, Local I-207 , [2003] AGAA No 114. [ 30 ] The Majority concluded that the Grievor had been wrongly dismissed, upheld the grievance and ordered that the Grievor be reinstated. [ 31 ] Because of the unavailability of time for judicial review in the Court of Queen’s Bench, the judicial review of that decision could not be heard until September 16, 2016 despite being moved diligently by the parties.

Majority Award [ 32 ] The essence of the Majority award is found at paragraphs 62 through 64. [ 33 ] In paragraph 62, the Majority reviewed the evidence of the various witnesses and in particular the testimony of the City’s senior negotiator. The negotiator testified that in recommending that the Grievor’s employment be terminated, she and her colleagues “considered all of the (Grievor’

s) absences including the wrist surgeries when they recommended that the grievor be terminated, but the second wrist surgery was “discounted”. [ 34 ] The Majority wondered what “discounted” meant in the context of the AMP.

They found that it was clear on the evidence that “the City relied on the first wrist surgery as the trigger for elevating the grievor from Level II to Level III.” They noted that “Three months later, after being absent for 30 days for his wrist surgery, he was elevated to Level III...Had the grievor not been elevated to Level III at that point, perhaps he would not have been reviewed for progression to Level IV in March 2014.” [ 35 ] They held at paragraph 63: 63 ...we conclude that 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. [ 36 ] The Majority stated at paragraph 64:

64 In all of the circumstances, we conclude that this is not one of those “very serious situations” warranting termination for non-culpable absenteeism. The record of absences shows that the corrective measures initiated by the City to improve the grievor’sattendance had a positive impact and the conditions that caused the grievor’s longest absences from work appear to have been resolved.For these reasons we cannot say that it is unlikely the grievor will be able to attend regularly in the future.

Further, the grievor’s absencesfor his two wrist surgeries and the incident of acute stress disorder should not have been relied upon to support termination.

When thoseabsences are removed from the record of absences, the grievor’s record is not so excessive as to support termination, either in the contextof the average number of incidents and absences of his co-workers or more generally in the context of other cases of termination forinnocent absenteeism. [37] The Minority arbitrator found at paragraph 41 of his decision that the Grievor had been accommodated in the case of hisdisability-related absences as they were “accommodated at the time they arose by giving the Grievor time off and access to sickleave/income replacement.

No ongoing accommodation was required nor requested.” [38] He found that the City had not discriminated against the Grievor by having improperly relied on the Grievor’s absences thatwere due to any disability. Standard of Review [39] The City argues that all errors are reviewable on the standard of reasonableness except for the

interpretation of the test forprima facie discrimination, which must be reviewed on a standard of correctness. To support this position, it relies on Stewart v ElkValley Coal Corp., [2015] AJ No 728 (ABCA), 2015 ABCA 225. That case is under appeal to the Supreme Court of Canada. It was onlyargued on December 9, 2016, so it is unlikely that a decision will be handed down anytime soon. [40] The City cites paragraphs 57 and 58 of that decision: [57] In the result, correctness applies to the legal

interpretation of the Meiorin and Moore standards by the Tribunal and for thatmatter to the decisions of the chambers judge and this Court on the same questions. [58] Correctness would not apply to the underlying fact findings such as respecting what is; (

a) the specific work environment; (

b) thetaxonomy of relevant and reasonable occupational requirements in that environment; (

c) the reality of employer-employee relations inthat environment; (

d) the content of collective agreements or other arrangements involving the employer and employees, would deservedeference. Equally, matters such as the credibility of witnesses or the value of expert evidence and so on are matters of fact or arecontributors to conclusions of mixed law and fact.

For those things, a review standard of reasonableness is appropriate with the deferenceassociated therewith being owed: Saguenay. [41] Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47 , [2013] AJ No 97 (ABCA) iscited for its reference to Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59: [59] Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberatejudicial review courts from what came to be seen as undue complexity and formalism.

Where the reasonableness standard applies, itrequires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine ifthe outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, atpara. 47). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with theprinciples of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferableoutcome. [42] The Union agrees that the standard of review is reasonableness, and also agrees that the legal

interpretation of human rightslaw tests would warrant a correctness standard of review, but argues that the legal

interpretation of human rights law tests does not arisein this case. [43] The issue to be determined is the extent to which the Majority considered the legal test for prima facie discrimination. Errors alleged by the City [44] The City alleges that the Majority erred in its review of the Shelter Regent tests. A.

Were the Grievor’s absences excessive? [45] Under this heading, the City alleges four errors on the part of the Majority, in that: 1) They unreasonably applied a different legal test than the one it identified by adding two additional requirements that do not formpart of the excessiveness assessment contemplated by Shelter Regent; 2) If the element of “burden” is a requirement of the excessiveness assessment, the Majority made an unreasonable finding withrespect to the spare board minimizing the burden when the spare board itself must satisfy any burden requirement; 3) They erred in removing the first wrist surgery and the acute stress absence from the excessiveness assessment by incorrectlyinterpreting and/or unreasonably applying the “onus” and/or “connection” components of the test for prima facie discrimination in PartFour (of the Shelter Regent tests); and

4) Its reasons were inadequate or they were not justifiable, transparent and intelligible to conclude that the record of absences was notexcessive having regard to the average number of incidents and absences of co-workers and the case law. 1. Different legal test [46] The City’s complaint is that the Majority erred by considering undue hardship in the context of its analysis of whether theGrievor’s absences were “excessive”.

The Majority suggested that the level of absenteeism necessary to satisfy the test of excessivenesshad to be at a level “so as to justify termination”. [47] The City argues that justification only arises on an assessment of all applicable parts of the Shelter Regent tests.

It argues thatthe real concern under Shelter Regent is the “Grievor’s continuing inability to sustain regular attendance”, citing Tolko Industries Ltd. vIndustrial, Wood and Allied Workers of Canada, Local I-207, [2012] AGAA No 68, aff’d 2013 ABQB 169, aff’d 2014 ABCA 236. [48] The City contrasts this approach with the approach under collective agreements that stipulate a level of past absence, whichwill result in dismissal.

That situation was discussed in McGill University Health Center (Montreal General Hospital) v Syndicat desemployes de l’Hospital general de Montreal, 2007 SCC 4 , [2007] 1 SCR 161. [49] The City advocates the approach taken by Arbitrator Ponak, focusing on consideration of the number of absences and thelength of these absences relative to the plant average. It cites UAW v Massey-Ferguson Ltd., (ON LA), 1969CarswellOnt 1074, and Public Service Alliance of Canada v Saskatchewan Gaming Corp., [2015] SLAA No 27. 2.

Unreasonable assessment of burden [50] In the alternative, the City argues that if the Majority was entitled to consider the burden of absences on the employer inconsidering whether the Grievor’s absences were excessive, their determination that the City’s spare board minimized the burden on theCity was unreasonable. [51] The spare board is the system organized by Edmonton Transit to cover absences when an operator is unable to work or simplydoesn’t show up. [52] The City notes that it must maintain the spare board so that transit service is not disrupted by operator absences, and that itmust pay another operator to perform the work in addition to paying an absent worker away on short-term sick benefits. [53] The City urges the approach suggested by the dissenting arbitrator: [a]bsenteeism in and of itself creates a burden and the steps taken by an employer to minimize the impact of absenteeism does not in anyway diminish the burden experienced by an employer arising from such absences. (at paragraph 74) [54] According to the City, “it cannot ever be reasonable that the spare board created and funded by the Employer will make itmore onerous for the Employer to establish that an absence record is excessive as suggested by the Majority’s reasoning.

The spareboard is the burden.” 3. Improper removal of disability related absences [55] The City submits that the Majority erred by concluding that the employer should not have relied on absences associated withcarpal tunnel syndrome and acute stress disorder because it did not address the Grievor’s onus to prove prima facie discrimination inrelation to those medical conditions. [56] The City notes that the Majority implicitly found that the Grievor’s absences were excessive if all absences, including theabsences associated with carpal tunnel syndrome and stress, are considered. 4.

Unreasonable Assessment of Excessiveness [57] The City challenges the Majority’s finding that the Grievor’s record was not so excessive to support termination and says thefinding is neither reasonable, is not intelligible and lacks transparency. [58] As regards co-workers, the City notes that the Greivor’s absences exceeded the transit operator average by a significantpercentage each year starting in January, 2010: 2010 – 118% total days absent and 133% in number of incidents; 2011 – 192% total days absent and 167% in number of incidents; 2012 – 80% total days absent and 100% in number of incidents; 2013 – 31% total days absent and 133% in number of incidents; and 2014 (January to April 1) – 92% total days absent and 67% in incidents. [59] The City calculates that over the full four years and three months, the Grievor’s absences exceeded the average by 135% intotal days absent and by 138% in terms of absence incidents. [60] The City argues that “the conclusion that the Grievor’s absences in excess of four years were not excessive when compared to

the average of his co-workers in the face of the indisputable, objective, numerical evidence to the contrary and is devoid of transparency and not intelligible. Outright and unexplained rejection of the conclusion that the objective evidence overwhelmingly supports is not what a reasonable adjudicator would do.” [ 61 ] The City also submits that the Majority was unreasonable in not comparing the absences here to the absence record in Loblaws Companies Ltd. v United Food & Commercial Workers, Local 247 , [2014] BCCAAA No 17. B.

Likelihood of Regular Future Attendance [ 62 ] Part Three of the Shelter Regent test is whether there is a positive prognosis for regular future attendance at the time of dismissal. [ 63 ] On this test, the Majority concluded on the evidence that “we cannot say it is unlikely that the grievor will be able to achieve acceptable attendance in the future. By that, we do not 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.” [ 64 ] The City argues that the Majority erred in: 1) Not applying the Shelter Regent test and unreasonably applied a different test that included reaching a “reasonable” level of attendance that did not impose a significant hardship on the City’s operations”; 2) Breaching procedural fairness as the Employer did not know the case to meet and was not given an opportunity to be heard on these “new parts” to the test; 3) Failing to determine and draw the refutable inference/onus shift on the issue of likelihood of regular future attendance which was unreasonable having regard to all relevant evidence and all relevant case law leading to reasons that were not justifiable, transparent and intelligible on whether the Employer has met this onus; and 4) Relying on irrelevant factors or findings that are unsupported by the evidence or otherwise not justifiable, transparent and intelligible. 1.

Unreasonably applying a different test [ 65 ] The City argues that the Majority unreasonably disregarded the City’s standard for expected attendance and instead and without reasons “rewrote its KVP complaint policy standard on expected regular attendance”, referencing the criteria in KVP Co. v Lumber & Sawmill Workers’ Union Local 2537 , [1965] OLAA No 2. [ 66 ] According to the City, its requirement that the Grievor comply with the average rates of absence for his occupational group was reinforced on a large number of occasions. [ 67 ] More significantly, the City complains that the first they learned that its standard of expected attendance as a measure of regular attendance was in the Majority award itself. [ 68 ] Its position on this appears to be that its standard should be treated as reasonable because the union did not specifically argue that it was not reasonable. [ 69 ] Management rights and the employer’s “right to expect absences to cease at some point, or at least come within a range of reasonable expectation” are discussed in KVP , Massey- Ferguson and Crouse-Hinds Canada Ltd. and United Automobile Workers , [1981] OLAA No 98. 2.

Breach of procedural fairness [ 70 ] The City argues that the failure of the Majority to give the City notice of its concerns over the reasonableness of the standard and to respond was a breach of its right to be heard, in violated procedural fairness. [ 71 ] It cites SEIU-West v Saskatoon Regional Health Authority , [2015] SJ No 102 . 3.

Failure to draw refutable inference [ 72 ] The City submits that the Majority correctly identified the onus shift and “refutable inference”, relating to the onus on the employee pertaining to the likelihood of regular attendance in the future, but that it erred by not actually making a determination of that issue.

The Majority recognized the issue, stated that 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.” [ 73 ] According to the City, the Majority should have made a specific finding on the subject of future attendance, and its failure to do so makes its reasons less than intelligible and transparent. [ 74 ] The City relies on Shelter Regent and Tolko Industries , noting that in AltaLink , the Arbitrator had evidence that the employee’s medical condition was treatable, which allowed him to find that the employee had rebutted the inference. [ 75 ] It also cites arbitral authority in other jurisdictions and in particular Coast Mountain Bus Co. v Canadian Auto Workers, Local 111 (Knight Grievance), [2000] BCCAAA No 44. (“Coast Mountain Knight”) , where the arbitrator held at para 72:

72 The union submits the employer prematurely advanced Mr. Czapiewski under its Attendance Management Program and incorrectly applied its Program to him in a mechanistic manner. There was no Occupational Health Nurse at the employment status review meetings in August 2002 and management did not have the medical information obtained in support of the workers' compensation appeal. That information would have had an effect on the review and recommendation. There was no notice to Mr.

Czapiewski that his dismissal was imminent. [ 76 ] The City says the Grievor’s absences are similar to those described in Coast Mountain (Knight) , and argues that “it is difficult to fathom on the Grievor’s record of absences how the Majority refused to draw a refutable inference” and that their assessment was not conducted “within the principles of justification, transparent, and intelligible consistent with reasonable adjudication.” 4. Unreasonable assessment of excessiveness (

i) Four ailments [ 77 ] The City argues that the Majority erred by focusing on four ailments, namely the two wrist surgeries in 2011 and 2013, the stress disorder following the death of his wife in 2010 and the tachycardia that occurred in 2012. It emphasizes the Grievor’s “propensity for illness in general”, which is the proper focus. [ 78 ] The City notes that notwithstanding the apparent resolution of these four ailments, the Grievor never achieved the required standard following his return to work.

In particular, the City focuses on the Grievor’s attendance record during the last nine months of his employment. [ 79 ] The City employee who made the decision to terminate the Grievor’s employment testified that she had “discounted” the second wrist surgery when contemplating the Grievor’s dismissal. [ 80 ] The City submits that the Majority failed to reasonably consider the Grievor’s frequent absences due to flu, which was the ailment causing the most incidents.

If it had done so, it would undoubtedly have concluded that the Grievor’s propensity to the flu was the most significant cause of his inability to maintain regular future attendance. [ 81 ] Findings relating to the unlikelihood of a recurrence of tachycardia were made without any evidentiary basis.

According to the City, the Majority was unreasonable in “importing a ‘known root cause’ analysis onto an absence record that is caused by a ‘classic case’ of intermittent and unpredictable and unrelated ailments.” (ii) Linking unrelated absence without medical evidence despite contrary evidence [ 82 ] The City criticizes the Majority for its conclusion the incidents in the first three months of 2014 may have been related, and that the City failed to explore these absences in any detail with the Grievor.

Those conclusions appear to have informed the Majority’s decision relating to the likelihood of regular future attendance, and were arrived at without any supporting evidence. [ 83 ] The Majority’s conclusion was not supported by a path of reasoning that fit within the principles of justification, transparency and intelligibility. [ 84 ] Further, the possible relatedness was based on pure speculation, and was in fact contrary to the evidence.

The City points to sick notes and discrepancies in the Grievor’s reporting of the reasons for his absence that would otherwise support some connection among the ailments. (iii) Undue reliance on an unreasonable finding of improvement [ 85 ] Essentially, the City argues that the Majority ignored the fact that any “improvement” in attendance by the Grievor still had the Grievor more than double the days absent standard.

What the employer looked for under the AMP was a period of at least one year where the employee met the standard. [ 86 ] The City says that the time for analysis of the likelihood of regular future attendance is the time of the dismissal, and that the Majority erred by using a different period.

The Majority should have used the analysis performed by the arbitrator in Tolko and its consideration of improvement needing to “rise to the level of demonstrating that the Grievor is capable of regular attendance.” [ 87 ] The City also disagrees with the Majority’s characterization of “unpredictable and sporadic” illnesses and it not having included the tachycardia in that category. [ 88 ] Ultimately, the City argues that the Majority unreasonably focused on: 1) the resolution of four of sixteen different medical ailments; 2) the possible relatedness of the three last absences; and 3) the Grievor’s attendance improvement based on the absence record.

C. Prima facie discrimination [ 89 ] The City argues that the Majority erred in two aspects of its analysis of discrimination and accommodation. [ 90 ] First, the Majority incorrectly interpreted and applied the “onus” and “connection” components for the test for prima facie

discrimination in assessing three isolated and resolved ailments (the acute stress and carpal tunnel surgeries). [91] Second, the Majority’s conclusion that the Grievor had discharged his onus to prove prima facie discrimination wereconclusions that were not available on a correct

interpretation of the test for prima facie discrimination, following Quebec v BombardierInc., 2015 SCC 39 , [2015] 2 SCR 789. 1. Onus and connection [92] The City cites paragraph 52 of Quebec v Bombardier: [52] In short, as regards the second element of prima facie discrimination, the plaintiff has the burden of showing that there is aconnection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, inother words, that the ground in question was a factor in the distinction, exclusion or preference.

Finally, it should be noted that the list ofprohibited grounds in s. 10 of the Charter is exhaustive, unlike the one in the Canadian Charter: City of Montréal, at para. 69. [93] At paragraph 65, the Supreme Court specified the applicable degree of proof for prima facie discrimination: [65] Thus, the use of the expression “prima facie discrimination” must not be regarded as a relaxation of the plaintiff’s obligation tosatisfy the tribunal in accordance with the standard of proof on a balance of probabilities, which he or she must still meet.

Thisconclusion is in fact supported by the passage from O’Malley quoted above, in which the Court stated that the case must be “completeand sufficient”, that is, it must correspond to the degree of proof required in the civil law.

Absent an exception provided by law, there isin Quebec law only one degree of proof in civil matters, namely proof on a balance of probabilities ... [94] Citing Sunrise Poultry Ltd. v United Food and Commercial Workers’ Union, [2016] BCCAAA No 53, the City notes thatthe Majority reasons make no reference to prima facie discrimination or the key elements of the requisite connection between disabilityand adverse treatment. 2.

Presumption not supported by facts [95] The City disagrees with the Majority finding that once a disability-related absence exists, prima facie discrimination is to beautomatically presumed, shifting the onus to the Employer to establish undue hardship. [96] That presumption is inconsistent with Shelter Regent.

There, the arbitrator noted that the identified disability-related absencewas acid reflux disease and gallstones, whereas the real cause of absences was the Grievor’s untreated substance abuse problem. [97] He queried whether the employer should be held responsible for failing to realize at the time of discharge that the Grievor hada substance abuse problem that might have been connected with his absenteeism, and answered the question in the negative. (atparagraphs 52-54). [98] The City argues that the Majority erred by relying on two Ontario arbitration authorities, Town of Ingersoll v CanadianUnion of Public Employees, Local 107, [2003] OLAA No 554, and City of Hamilton v Canadian Union of Public Employees, Local5167, [2002] OLAA No 73, as support for their statement that “disabilities cannot be relied upon to justify termination for innocentabsenteeism unless there has been accommodation to the point of undue hardship.” [99] In Ingersoll, the town had essentially conceded that the Grievor’s migraines were the cause of his absenteeism.

There, thereal issue was accommodation and undue hardship. [100] The City is critical that the arbitrator’s analysis, below, was not considered by the Majority: As such, the amount of accommodation made on account of Ms.

Alyea’s disability prior to July 22, 2002, is not known, the calculationof cost to show accommodation to the point of undue hardship cannot be made, and the employer is unable to demonstrate it hasaccommodated the disability to the point of undue hardship. [101] That is significant because it demonstrated that the real issue was whether the town could demonstrate undue hardship, notwhether there had been prima facie discrimination. [102] In Hamilton, had a disability-related absence not been relied on as a trigger for termination, the employee would not haveexceeded the employer’s attendance threshold. [103] According to the City, that case is distinguishable (as is Ingersoll) because the prima facie discrimination was “abundantlyclear” in both cases. [104] The City argues that David Thompson Health Region is distinguishable as it was a policy grievance and is of limitedapplication. [105] The City notes that in Coast Mountain Bus Co v National Automobile, Aerospace, Transportation and General Workers ofCanada, Local 111, [2006] BCAA No. 87 (“Coast Mountain (2006)”) the employer had “segregated out” absenteeism from disability-related causes.

The arbitrator recognized that and noted that the employee had not sought any accommodations, noting as well that theemployee had been absent for 103.5 days in 2004 for reasons unrelated to his depression disorder. [106] In this case, the City argues that the key question for the arbitrators to ask was “did the union discharge its onus to prove onbalance the requisite connection between each of his resolved disabilities and dismissal?”. [107] No evidence was led on the disability absences, and the City detailed in its argument the absence of any requests by the Grievor

for accommodations, his denials that he suffered from any “medical disability preventing him from attending work on a regular basis” and the City’s numerous steps under the AMP including counselling. [ 108 ] With respect to the second wrist surgery, which was “discounted” by the City in making the final decision to terminate the Grievor’s employment, the City argues that the Grievor’s absences were well above the standard even ignoring the absences related to the second wrist surgery. [ 109 ] A “Final Opportunity for Improvement” letter was sent out following the second wrist surgery, but the decision to terminate was made following a further period of unacceptable attendance. [ 110 ] The City notes that it is “incomprehensible” that the Majority would have rejected the City employee’s evidence as to “discounting” the second wrist surgery without asking any questions of her, while accepting that the WCB absence was not considered.

This, according to the City, makes the reasons unintelligible and not transparent. It concludes its argument stating: The Board’s Award does not offer any comprehensible reasoning with respect to the contrary evidence and the connection of the Grievor’s resolved disabilities to his dismissal, which makes the decision unreasonable.

Grievor’s response [ 111 ] The Grievor agrees that the four-part test from Shelter Regent is the framework for determining whether just cause exists for non-culpable absenteeism, noting however that any termination based on non-culpable absenteeism must still comply with the just cause provisions for termination in the collective agreement. [ 112 ] In dealing with Part One of the Shelter Regent framework – excessive absenteeism – the Grievor relies on Coast Mountain Bus Co. v National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada) Local 111, [2003] BCAAA No. 294, (“Coast Mountain (2003)”) for the proposition that absenteeism above a workplace average is not necessarily excessive.

He argues that this proposition applies to a unilaterally imposed rule such as the AMP. [ 113 ] On Part Three of the test – future regular attendance – the Grievor agrees that there is a switching onus provided the employer has satisfied its initial onus of persuading the arbitrator that the past absenteeism should lead to the inference that future regular attendance is unlikely.

The Grievor relies on Altalink Ltd v United Utility Workers’ Association and Tolko Industries Ltd and IWA- Canada, Local 1-207 . [ 114 ] In Altalink , the Arbitrator noted at paragraph 62: 62 The cases on the “prognosis for future attendance” aspect of the test, when dismissal occurs in a case like this, rests on the employer, but often the employer is entitled to rely upon a reasonable inference based on past experience. This is not a fixed presumption; rather it is a matter of convincing the board that such an inference, based on all the circumstances, is appropriate.

An arbitration board, in deciding that question, must assess the legitimacy of the employer drawing such an inference at the time of its decision to terminate. In our view, the reasonableness of drawing such an inference cannot be divorced from the type of illness, the medical information known of the condition, its anticipated length of treatment, certainty of diagnosis and so on. Also, the reasonableness of such an inference cannot be divorced from the requirement for a warning to the employee.

It is one thing to draw such an inference when the employee has been asked if and when they will be back to work, and if necessary, subject to what restrictions.

It is quite another if the employee has not been asked. [ 115 ] For Part Four of the test – disability and accommodation – the Grievor relies on Ingersoll . [ 116 ] The Grievor submits that the Majority “accounted for, followed and applied all of the foregoing legal principles.” [ 117 ] The Grievor notes that the Majority did not expressly deal with Part One of the test – excessive absenteeism – because of the focus of the arguments before it, which related to the third and fourth parts of the Shelter Regent analysis. [ 118 ] He references paragraph 35 in the Majority decision, which describes how the Majority approached its task on the arbitration: 35 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 [ 119 ] The Grievor argues that it was reasonable for the Majority to determine that for excessive absenteeism to be capable of justifying dismissal, there must be a degree of absenteeism that “significantly burdened the employer”. He submits that the

interpretation of “excessive” is a matter of law concerning the operation of the collective agreement, and as such, deference should be given to the expertise of the Majority. [ 120 ] Regarding the issue of the onus of demonstrating that the Grievor is likely to achieve future regular attendance, the Grievor notes that the Majority stated at paragraph 43 of its decision: 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. [ 121 ] The Grievor argues that the Majority’s analysis of his absences was reasonable, and that in light of its analysis, it was not unreasonable for them to conclude that it was not unlikely that the Grievor would be able to work regularly in the future.

[ 122 ] The Grievor pointed out that his absenteeism was far less than the absenteeism in Tolko and in Loblaws Companies Ltd. v United Food and Commercial Workers, Local 247 . [ 123 ] He argues that the Majority was reasonable in concluding that “a unilaterally imposed attendance management program does not displace an arbitrator’s role in assessing whether termination occurred with just cause.” [ 124 ] The Grievor submits that the City provided no evidence that the Grievor would be unable to regularly work in the future, other than asking the arbitrators to infer that from the Grievor’s past attendance record.

The City did not seek any medical evidence of its own, nor did it question the prognosis from the Grievor’s doctor of “good”.

Thus it was reasonable for the Majority to allow the grievance. [ 125 ] As for the City’s argument that the Majority breached procedural fairness by imposing a test different from that in Shelter Regent relating to future levels of attendance, the Grievor argues that the Shelter Regent framework is only to determine if non-culpable attendance levels justified termination and that it was not unreasonable for the Majority to equate regular attendance with “reasonable, non-excessive attendance that does not significantly burden the City.” [ 126 ] The Grievor submits that “regular attendance” is not to be equated with the City’s own AMP expectations.

Those expectations or standards do not bind arbitrators in determining whether just cause existed. [ 127 ] As to procedural fairness, the Grievor says that the City had the opportunity to address each of the factors it now expresses concern over. [ 128 ] Regarding the City’s argument that the Majority relied on irrelevant factors, the Grievor argues that the fact findings were reasonable inferences from the evidence submitted. [ 129 ] The Grievor says that the Majority made no errors relating to discrimination and accommodation.

He argues that the City did not argue undue hardship before the arbitrators and as such the Majority only dealt with whether some of the absenteeism was caused by “disability.” [ 130 ] From the decision, it is clear that the Majority concluded that carpal tunnel syndrome and acute stress disorder were disabilities, based on case law, but also held that there was insufficient evidence for them to decide if tachycardia, pneumonia, bronchitis or chest issues were disabilities. [ 131 ] The Grievor emphasizes the Majority’s conclusion at paragraph 60: With respect, an employer cannot escape a finding of discrimination by accommodating an employee while he is disabled and then terminating him once he recovers based on those same absences. [ 132 ] The Grievor submits that termination itself is a form of adverse treatment that constitutes prima facie discrimination if disabilities are a factor in it.

As such, the Grievor argues that the Majority was correct to hold that the timing of a disability does not matter in this context and that the City cannot rely on absences caused by disabilities to justify his termination. [ 133 ] He notes that the Majority found it significant that the City’s senior negotiator testified that she and her colleagues “considered all of the absences including the wrist surgeries when they recommended that the Grievor be terminated but the second wrist surgery was “discounted”.

The Majority also noted that the Grievor’s elevation from level II to level III was the result of the first wrist surgery. [ 134 ] According to the Grievor, these fact findings “entailed a reasoned assessment of the relevant evidence. They are justifiable, transparent and intelligible.” [ 135 ] In response to the City’s submissions concerning the Majority’s application of Part Four of the Shelter Regent framework, the Grievor submits that there was no misapplication by the Majority and that they did not apply an automatic presumption that the Grievor’s disabilities factored into the termination.

Rather, he argues that the Majority made an assessment of the evidence and concluded that there was a link between disabilities and termination. [ 136 ] The Majority’s failure to specifically detail the test for prima facie discrimination does not mean that they failed to apply the correct test.

The Grievor submits that the Majority drew the conclusion it did regarding the connection between disabilities and termination based on the evidence. [ 137 ] Ultimately, the Grievor submits that the City’s arguments are really challenges on fact findings, and that the Majority is entitled to deference on these findings. [ 138 ] As to the merits on these issues, the Grievor asserts that the Majority was reasonable in relying on Ingersoll to the effect that an employer cannot rely on disability-related absences to terminate employees unless the employer has accommodated to the point of undue hardship.

Analysis [ 139 ] This case is an interesting mix of labour relations and employment law. The principles involved are common law employment issues, while the forum is determined under the provisions of the collective agreement binding the parties. [ 140 ] The AMP is not part of the collective agreement. It is curious that the Union describes the AMP as having been unilaterally imposed on the City’s employees, but makes no submissions concerning the reasonableness of the policy, or its constancy with employment law.

I assume that is because the policy grievance launched after the implementation of the AMP was settled such that it may be awkward for the Union to make such submissions.

[141] Nevertheless, under employment law, innocent absenteeism is a basis for termination of employment only when an employee’sinability to attend work on a regular basis is tantamount to frustration of the employment relationship or contract. [142] At common law, an employer’s right to terminate an employee’s employment for innocent absenteeism is very limited. Illness isnot grounds for

summary dismissal because it does not constitute misconduct. However, if sufficiently serious, non-culpable illness canlead to frustration of contract and thereby bring the employment relationship to an end. [143] Frustration arises where there is a supervening event that is the fault of neither party and for which there is no provision in thecontract. As a result contractual performance “becomes a thing radically different from that which was undertaken by the contract”:Naylor Group Inc v Ellis-Don Construction Ltd, [2001] 2 SCR 943, 2001 SCC 58.

The frustration of a contract results in both partiesbeing discharged from their obligations. [144] In the context of a contract of employment, frustration can arise where an employee experiences a permanent illness ordisability. This was established in Dartmouth Ferry Commission v Marks (1903), (SCC), 34 SCR 366, which remainsgood law. Therefore, when an employee becomes ill or disabled, the critical question is whether the ailment is permanent and thussufficient to frustrate the contract. [145] In Yeager v R.

J Hastings Agencies Ltd, (BC SC), [1985] 1 WWR 218 at para 85, “permanent” is not to beused in its most literal sense of “indefinite”, but rather in a business sense.

A “permanent” illness is one that puts an end to the businessrelationship whereas a “temporary” illness will have no such effect. [146] Canadian courts have adopted the analytical approach set out by the English Court of Appeal in Marshall v Harland & WolffLtd, [1972] 2 ER 715 at pages 718-719, where the court stated that what must be asked is whether the incapacity was “of such a nature ordid it appear likely to continue for such a period, that further performance of his obligations in the future would be either impossible orwould be radically different” from what the parties had initially agreed.

The court also suggested that an answer to this question shouldconsider the following factors: (

a) the terms of the contract, including provisions for sick pay; (

b) how long the employment was likely to last in the absence of sickness; (

c) the nature of the employment; (

d) the nature of the illness or injury and how long it has already continued and the prospect of recovery; and (

e) the period of past employment. [147] These factors are interrelated and cumulative, but are not exhaustive and other relevant factors may be considered. The presenceof such a broad range of factors shows that the court’s approach requires a fact-specific and contextual analysis. Each case will beheavily fact-driven and the precedential and persuasive value of other cases will thus be limited. [148] A contextual analysis means that determining “permanent” or “non-permanent” is not a mere counting exercise in order todetermine whether the length of an illness surpasses a particular numerical threshold.

It is interesting to note that in the common lawemployment world, the Ontario Court of Justice found in Fraser v UBS, 2011 ONSC 5448 that a three-and-a-half-year absence wassufficiently permanent to frustrate a contract, whereas a five-year absence was found to be temporary in Naccarato v Costco WholesaleCanada Ltd, 2010 ONSC 2651. [149] Parties can generally make their own arrangement and can generally contract out of legal positions.

In other words, the partiesbargain away their legal rights. [150] Employers may impose terms in an employment contract that differ from what might be the result under common law, so longas the other party agrees. [151] It is beyond the scope of this decision to delve into whether or to what extent an employer might be able to incorporateworkplace rules into the contract of employment.

In a unionized setting, the contract of employment is essentially replaced by thecollective agreement. [152] It is clear, however, that contractual provisions that are contrary to the Alberta Human Rights Act are unenforceable:Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), (SCC), [1996] 2SCR 3, and Parry Sound (Dist.) Social Services Administration Board v.

O.P.S.E.U., Local 324, 2003 SCC 42. [153] It seems to me that the AMP here has a significant potential to discriminate against some employees on the basis of their healthand to discriminate against some employees on the basis of their age. I do not think that it takes expert evidence to establish that as oneages, one becomes more prone to health issues such as arthritis, heart issues, breathing issues and the like. Repetitive strain injuriesundoubtedly increase with age. Even healthy bodies begin to break down at some stage.

The fountain of youth has not yet beendiscovered. [154] An AMP might be used to get rid of an employee in failing health due to age rather than any specific cause that might bedescribed as a “disability”. Doing so would prevent the employee from the benefits of a long-term disability plan that the employeemight have been able to access by demonstrating a “disability” that fell within the

definitions in the disability policy. [155] I see no clear justification for the determination of averages for workplace incidents and days absent from work being based on

the statistics for all employees doing the same job, regardless of age. In particular, I cannot see that the health-related absences of anewly-hired 18-year-old should be treated the same as the health-related absences of a 64-year-old. Or vice versa. Averaging the twoemployees’ absences leads to a formula that really fits no one. [156] That may make sense from an organizational point of view, but it has employees treated as removable and replaceable parts. [157] York Univeristy v York Univeristy Staff Association, (OLAA) is a grievance arbitration about York’sattendance management program.

The arbitrator stated at paras 31 – 33: 31. However, an employer’s management right to impose a unilateral attendance management program is not unfettered. Aunilaterally promulgated attendance management program is void and unenforceable to the extent that it conflicts with the collectiveagreement or applicable legislation. 32. Further, an attendance management program must not be structured or applied in manner that is arbitrary, discriminatory or in badfaith.

It must be structured and administered reasonably; that is, in a manner which considers both employer and employee collectiveagreement and statutory rights, and legitimate interests. The test for reasonableness is an objective one. It is not a matter of perspective.It does not depend on the subjective views of the employer, the union, or any employee or group of employees. 33. The KVP analysis has been applied in many attendance management program cases.

Such programs were rare (perhapsnonexistent) in the mid-1960’s when that case was decided, and that case did not in any event concern an attendance managementprogram. Nevertheless, when paraphrased to suit, the first 5 KVP “rules” or criteria (i.e. consistent with the collective agreement,reasonable, clear, brought to employees’ attention, notice of consequences) provide a suitable basis for review of an attendancemanagement program.

Although the 6th criterion (consistent enforcement) may appear problematic because of the flexibility anddiscretion that are inherent in a properly structured and administered attendance management program, it also applies in the sense that anattendance management program should include sufficient flexibility and discretion to permit it to be administered with consistentfairness and due regard for individual circumstances. [158] There are clear differences between York University’s AMP and the AMP here.

The most obvious one is that the “startingpoint” in York University’s AMP was a 10.5% per quarter absence standard set in the AMP versus the campus services and businessoperation unit average of 5.46% per quarter. [159] The arbitrator there relied on McGill University Health Center (Monteral General Hospital) v syndicat des employes del’hospital general de Montreal, 2007 SCC 4 , [2007] 1 SCR 161, stating at paragraph 34: 34.

However, it has long been recognized that even such innocent absenteeism can result in termination of employment in theemployer’s discretion (see, for example Massey-Ferguson Industries Ltd. and U.A.W., Local 458, (1972) (ON LA), 24L.A.C. 344 (Shime)). It is well established that an employer may terminate the employment of an employee when the employee has beenunable to attend work with reasonable regularity and there is no reasonable prospect that the employee will to be able to do so in theforeseeable future even with available accommodation to the point of undue hardship.

This is so whether or not excessive absenteeism isdue to a compensable or non-compensable disability, and whether or not the employment relationship is governed by a collectiveagreement. In McGill University Health Centre (Montreal General Hospital) v.

Syndicat des employés de l’Hôpital général de Montréal,[2007] 1 S.C.R. 161, 2007 SCC 4 , Abella J. wrote (correctly, in my respectful view) as follows: 62 Non-culpable absenteeism, including the failure to achieve a reasonable degree of attendance because of illness, is accepted inarbitral jurisprudence as a just cause for dismissal. …. 63 This does not target individuals arbitrarily and unfairly because they are disabled; it balances an employer’s legitimate expectationthat employees will perform the work they are paid to do with the legitimate expectations of employees with disabilities that thosedisabilities will not cause arbitrary disadvantage. … [160] He concluded at paragraphs 50 and 51: 50 I am satisfied that the AMP satisfies the KVP criteria, and that there is nothing in it that is contrary to the collective agreement, orto the Occupational Health and Safety Act, the Human Rights Code or any other legislation.

I am satisfied that the AMP is the product ofa reasonable exercise by York of its management rights. 51 If there is a concern about the application of the AMP to a particular employee, that can be the subject of an individual grievance.If there is a concern about the application of the AMP to an occupational or other identifiable group of employees, that can be the subjectof a group or possibly a policy grievance. If there develops a systemic concern about the application of the AMP, that can be the subjectof a policy grievance.

However, the onus is on YUSA to provide cogent evidence to establish that the prima facie reasonable AMP infact is not, or that it has been or is being applied in a manner that is contrary to the collective agreement or legislation, or otherwiseunreasonably. There is no such evidence before me. [161] In the case before me, there is no direct attack on the reasonableness of the AMP. The specifics of the AMP were not arguedbefore me, and I was not asked to rule on the reasonableness or validity of any portion of it.

For the purposes of this application, that mayhave the effect of deeming the AMP to be reasonable, and that it is now part of the “contract of employment” between the City and theGrievor.

I make no such findings here, but will proceed with my analysis on the basis that the AMP is both of those things. [162] That still requires a detailed analysis of the various parts of the Shelter Regent test and keeps the Alberta Human Rights Act inplay, and in particular Part Four which asks if the employer attempted to accommodate the employee to the point of undue hardship priorto dismissal if the absenteeism was caused by an illness or disability, or was somehow age-related. [163] Accordingly, I essentially agree with the Union’s position that the real issues in this matter relate to Parts Three and Four of theShelter Regent test.

Doing so allowed the matter to be argued without attacking the reasonableness of the AMP itself.

[ 164 ] The City’s arguments revolve around their apparent presumption that: the AMP is reasonable; and so long as it establishes that the employee’s absences exceeded the workplace averages; and the City has followed the stated processes in moving the employee through the various levels; termination for cause is justified unless the employee can prove on balance that he is likely to be able to return to regular attendance as mandated in the AMP; and the City only has to deal with accommodation and undue hardship if the employee has proven prima facie discrimination in his termination. [ 165 ] With due respect to the City’s position, I do not think that the arbitration panel’s role was quite so simple.

What that ignores is what the Grievor emphasizes: the AMP does not bind an arbitrator’s hands as to what constitutes just cause, and the AMP does not bind an arbitrator’s hands in determining what constitutes reasonable attendance for the purpose of assessing just cause. [ 166 ] To the extent that arbitral decisions can be interpreted as holding that an AMP binds an arbitrator on these issues, those decisions are not binding on the Court.

The Supreme Court of Canada has held that there is no stare decisis within the arbitration community: arbitration awards do not bind an arbitration tribunal nor are they binding in the courts: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. , 2013 SCC 34 at para 6 . [ 167 ] In that regard, I am of the view that Windsor (City) v Canadian Union of Public Employees, Local 543, [2002] OLAA 153 , and Coast Mountain (2003) are applicable to this case on that point. [ 168 ] The City argues in its brief that the AMP is a KVP-compliant policy, relying on the Union not having taken express issue with the reasonableness of the AMP in this matter. [ 169 ] The Majority thus proceeded on the basis that the AMP was not by itself objectionable.

That does not mean that a breach of the provisions of a City policy that is not part of the Collective Agreement will automatically result in just cause for termination. The AMP is itself permissive in terms of the disciplinary measures that may be imposed for a breach. [ 170 ] Thus, that leaves the issue of just cause to be determined, not just whether the City complied with its policy. The Collective Agreement reserves the management right to discipline an employee for just cause. While not express, discipline includes the right to terminate employment.

Just cause is not defined, such that the common law provisions relating to just cause apply. [ 171 ] To the extent that the Majority decision might be seen as suggesting that termination for excessive non-culpable absences can focus on past illnesses, I agree with the City that would be an error.

As set out in Shelter Regent , and other cases dealing with termination for non-culpable absenteeism, a major focus is whether the employee is likely in the future to return to a reasonable level of attendance, not merely the quantification of the employee’s past absences. [ 172 ] This background leads me to consider the City’s specific complaints about the Majority decision. A.

Were the Grievor’s absences excessive? [ 173 ] Unreasonable application of a different legal test than the one it identified by adding two additional requirements that do not form part of the excessiveness assessment contemplated by Shelter Regent. [ 174 ] The City has four complaints. The first one is that the Majority appears to have felt that dismissal for past innocent absenteeism could occur. The next is that the Majority considered the impact of the Grievor’s absenteeism on the City, rather than simply looking at a numeric assessment.

Third is that the Majority erred by removing the first wrist surgery and the stress disorder from its consideration of “excessiveness”. Fourth is alleged inadequacy of reasons. 1. Wrong test [ 175 ] To analyze the alleged errors here, it is important to look closely at Shelter Regent . I would observe at the outset that Shelter Regent is an extremely well considered and well written decision, and has justifiably been followed innumerable times by arbitrators. [ 176 ] Shelter Regent is a case about excessive absenteeism, not about an AMP.

In Shelter Regent, the collective agreement provided that seniority would be lost for “chronic absenteeism which was substantially in excess of the absenteeism rate.” [ 177 ] There, the plant average was 3-4% absenteeism, including disability and workers’ compensation. The grievor’s absences were in the 16-45% range. [ 178 ] The union agreed that the grievor’s absences were excessive, but argued that discharge was not appropriate. [ 179 ] However, the Majority did not base its decision on any such premise.

The main difficulty with the City’s argument here is that it equates excessive absence with its calculated average and its policy that deems anything above the average to be excessive. [ 180 ] That is not the type of excess considered by the arbitrator in Shelter Regent . In that case, the arbitrator looked at the grievor’s absences in the context of the plant average and came to his own conclusion as to whether the absences were “substantially in excess” of the absenteeism rate.

[181] The arbitrator also noted that the employee’s absences were disruptive of the employer’s operations. [182] Tolko, decided by the same arbitrator as in Shelter Regent, does not involve an AMP. In that case, as in Shelter Regent, thearbitrator compared the grievor’s attendance with the plant average. He noted at paragraph 68 that the grievor’s absenteeism had been“extremely high” for years in both absolute terms and relative to other employees. His best years had still been three to four times theaverage.

He concluded that “five years of extremely poor attendance sandwiched by two years of, at best, very mediocre attendance,easily meets a definition of excessive absenteeism.” [183] The significant issue in that case was the fact that the grievor’s attendance record was the best in the last year of hisemployment, where he was absent for “only” 13.4 % of the time compared to the plant average of 4.6%. [184] Coast Mountain (Knight) did involve an AMP. It does not appear that the terms of the AMP were particularly relevant to thedecision, as the grievor’s absences had amounted to an average of 45.9% over three years.

The panel noted at paragraph 63 “that herabsences were excessive is neither challenged by the union nor the grievor herself”. There was no determination that the excessiveabsenteeism sufficient to trigger the rebuttable onus was defined by the AMP. [185] Hamilton also involved an AMP. The arbitrator noted there that the issue before him related to the administration of the AMPprocess in the grievor’s circumstances (at paragraph 3). [186] At paragraph 5, the arbitrator referenced KVP and stated: Those are the “KVP requisites” an employer must meet.

Even if, as was suggested in the case before me, the Union historicallyacquiesced or participated in the operation of the attendance management program, the actual administration and application of such aprogram in individual cases will be open to review at arbitration on grounds of reasonableness and the standard of just cause. [187] That case turned on the arbitrator’s review of how the employer had treated absences for workplace injuries. [188] I do not view Shelter Regent as a formula that must be approached in sequence.

I also do not see that the Shelter Regent testsare watertight compartments within themselves. I do not think that the Majority erred by refusing to apply the City’s definition ofexcessive absenteeism as contained in the AMP and instead attempting to determine in the context of this employee and this employerwhat “excessive absenteeism” should be held to mean. [189] Shelter Regent does not define “excessive”.

That appears to have been taken for granted based on the percentages ofabsenteeism, although the arbitrator noted as well that the absenteeism was “disruptive to production” (at para 40). [190] It is interesting to note that the arbitrator in UAW v Massey-Ferguson Ltd, (ON LA), 1969 CarswellOnt1074, [1969] OLAA No 2 noted at paragraph 4: 4 The first basic principle is that innocent absenteeism cannot be grounds for discipline, in the sense of punishment for blameworthyconduct. It is obviously unfair to punish someone for conduct which is beyond his control and thus not his fault.

However, arbitratorshave agreed that, in certain very serious situations, extremely excessive absenteeism may warrant termination of the employmentrelationship, thus discharge in a non-punitive sense. Because the relationship is contractual, and the employer should have the right to theperformance he is paying for, the employer should have the power to replace an employee on a job, notwithstanding the blamelessness ofthe latter. If an employee cannot report to work for reasons which are not his fault, he imposes losses on an employer who is also not atfault.

To a certain extent, these kinds of losses due to innocent absenteeism must be borne by the employer. However, after a certain stageis reached, the accommodation of the legitimate interests of both employer and employee requires a power of justifiable termination inthe former. [191] The City cites Public Service Alliance of Canada v Saskatchewan Gaming Commission, [2015] SCAA No. 27, to the effectthat the arbitrator did not consider the imposition of any burden on the employer as part of the first Shelter Regent test of excessiveabsenteeism.

The arbitrator concluded at paragraph 79 that the employee’s average 21.2% absenteeism was excessive, noting howeverthat “there was no debate between the parties as to whether the First Test was met.” [192] That arbitration turned on the sufficiency of warnings given to the employee, not the absenteeism itself or any hardships oraccommodations. [193] I do not see that the absence of discussion about impact on the employer makes this a precedential case on absenteeism. [194] I agree with Arbitrator Weiler’s description of the law on the subject as it was in 1969.

The common law on the subject remainsthe same, in that it is no easier for an employer to dismiss an employee for innocent absenteeism now than it was before. [195] It is not clear how Arbitrator Weiler’s description of “extremely excessive absenteeism” has been watered down in thearbitration cases to “excessive” absenteeism.

It is certainly permissible for an employer and a union to negotiate something less than“extremely excessive” in the collective agreement, as appears to have been the case in McGill University Health Center (MontrealGeneral Hospital) v Syndicat des employes de l’Hopital general de Montreal, 2007 SCC 4 , [2007] 1 SCR 161. [196] But that is not the case here.

The collective agreement is silent on discipline or termination for innocent absenteeism. [197] In my view, it was reasonable for the Majority to consider what constitutes excessive absenteeism, and that it was notunreasonable for them to look beyond the AMP in doing so. [198] I conclude that the Majority did not err in failing to follow the Shelter Regent test, as Shelter Regent gives little guidance as tothe determination of “excessive absenteeism.”

[ 199 ] The Majority here reasonably considered the impact of the Grievor’s absenteeism on the City in determining whether the Grievor’s absences were “excessive.” [ 200 ] In my view, it would have been unreasonable for the Majority not to have considered the impact of absence on the employer.

While “impact on the employer” overlaps to some degree with consideration of excessiveness and accommodation, just because impact on the employer is an important factor in looking at accommodation and undue hardship, that should not preclude an arbitrator from considering it in the context of whether an employee’s absenteeism is excessive. [ 201 ] The situation here should be contrasted with that in Alberta v AUPE , [2008] AGAA No. 35.

There, the arbitrators dismissed the grievance, holding at para 169: 169 The fourth question is, if the absenteeism is caused by an illness or disability, did the Employer attempt to accommodate the employee to the point of undue hardship prior to dismissal. This question raises several issues. First, Mr. Gregoire testified before us that, at certain times, he suffered from and took medication for depression caused by personal circumstances and by what he perceived to be workplace harassment. Mr. Gregoire’s own evidence on this was vague and lacked particulars as to treatment, duration and so on.

It was open to him to call supporting medical evidence and he did not do so. It was open to him to tell Dr. Fischer or Dr. Sood about this, or to take up the offers we find were in fact made for an EAP referral.

He did none of those things. [ 202 ] Their analysis of excessiveness recognized that the employer’s need for regular attendance was “particularly high” (at para 163). [ 203 ] The panel also questioned “whether the centre average is a very helpful benchmark”, but noted that “he is so well beyond that debate on that question is of virtually no consequence” (at para 163). [ 204 ] Neither of these factors is present in this case. [ 205 ] A “one size fits all” rule is potentially problematic.

It may be very disruptive to an employer when a key employee or an employee performing a unique function is absent; it may cause little disruption when an employee, whose work can easily be done by another competent and qualified employee, is absent. [ 206 ] In any event, I find no reviewable error by the Majority on this issue. 2. Unreasonable finding with respect to the spare board minimizing the burden [ 207 ] The City argues that the presence of the spare board system to cover absences proves that it was impacted by the Grievor’s absences.

It notes that the City must pay the absent employee’s short-term sick benefits as well as the pay for the replacement worker.

It says that this amounts to an “adequate level of burden” to satisfy any burden requirement on the City’s part. [ 208 ] The City cites the dissenting reasons, and the dissenting arbitrator’s conclusion that the spare board itself creates a burden, and that it would be unreasonable to treat transit operators differently from non-transit operators who may not be replaced under a spare board system. [ 209 ] The dissent emphasizes the “one size fits all” approach, which ignores individual traits. I recognize that is part of the collective bargaining system, but the AMP does not arise in the system.

It was unilaterally imposed by the City and in my view is to be viewed in the light of common law employment principles. [ 210 ] I see nothing unreasonable in the Majority considering the spare board system as a responsible way of protecting the public from transit system interruptions caused by all kinds of operational situations, and not just innocent absenteeism. [ 211 ] I find no error or unreasonableness under this category. 3.

Error in removing the first wrist surgery and the acute stress absence from the excessiveness assessment by incorrectly interpreting and/or unreasonably applying the “onus” and/or “connection” components of the test for prima facie discrimination in Part Four of Shelter Regent [ 212 ] The City argues that the Majority erred by removing disability-related absences from its consideration of excessiveness and then concluding that the Grievor’s absences were not excessive.

The City also argues that the Majority erred in concluding that consideration of disability-related absences for termination of employment was unlawful, “unless continuing the grievor’s employment creates undue hardship.” [ 213 ] The two types of absence considered in this category were the Grievor’s two carpal tunnel surgeries and absences related to “acute stress.” [ 214 ] I do not think the Majority was unreasonable in removing the disability-related absences from the Grievor’s record when looking at whether his non-culpable absences were excessive for the purpose of a termination analysis.

It seems incongruous that what might push an employee over the top of excessiveness is absence caused by disability. [ 215 ] What the City appears to be arguing is an end run around the Human Rights Act , attempting to do something indirectly that it cannot do directly. This is inappropriate, and the Majority acted reasonably in excluding consideration of the disability-related absences. 4. The reasons were inadequate or they were not justifiable, transparent and intelligible to conclude that the

record of absences was not excessive having regard to the average number of incidents and absences of co- workers and the case law [ 216 ] The City argues that the Majority erred by concluding that the Grievor’s absences were not so excessive as to warrant termination in the context of the co-worker average or in the context of terminations in other cases where termination for innocent absenteeism was upheld. (

i) Grievor’s record compared to co-workers [ 217 ] As noted by the City, the Grievor’s absence record exceeded the average in each of 2010 to 2014 by margins of 31% to 192%. The 192% year (2011) was the year of the first carpal tunnel surgery.

The next highest year (2010) was 118%. [ 218 ] Adjusted by removing the disability-related absences, the absences apart from the first three months of 2014 were between 15 and 19.75 shifts compared to the average number of shifts missed, being 13 to 15 shifts. [ 219 ] Having concluded that the Majority was reasonable in ignoring disability-related absences, the Majority recognized that the Grievor’s absences exceeded the averages, stated “our task…is 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.” [ 220 ] I conclude that the Majority was reasonable in taking the approach it did: not considering itself bound by the fact that the Grievor’s absences (viewed either with or without the disability-related absences) exceeded the worker average. [ 221 ] The Majority’s approach was in keeping with the approach taken in Coast Mountain (Knight) and in UAW v Massey- Ferguson, and meets the reasonableness test and the test for the sufficiency of reasons. (ii) Grievor’s record compared to other cases [ 222 ] The City argues that the Majority should not have relied on cases that were not on point, especially ones that were not submitted by either party.

Indeed, the City argues that the excessiveness analysis should have ended with the determination that the Grievor’s absences exceeded the averages. [ 223 ] I do not see that the Majority did any more than consider the Grievor’s record with the records of employees in other cases

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