Managing absenteeism and dealing with the associated costs are
among the most difficult things employers face. Accordingly,
many employers try to incentivize employees to improve their
attendance by providing bonuses based on meeting attendance
thresholds. Seems simple enough. However, what if
an employee is off work on a disability leave? That
employee is off work through no fault of his/her own yet otherwise
had perfect attendance. Should such an
employee be able to claim the attendance bonus?
A recent arbitration decision says "no".
In Halltech Inc. and United Steelworkers of America ((2013), 232
L.A.C. (4th) 433), the employer had a policy whereby employees with
a perfect attendance record for the year would be paid a
bonus. The grievor had perfect attendance except for
a two-day stint on workers' compensation. The Union
argued that the absence, which was non-culpable, should
not have counted against the grievor's attendance record and
that denying the bonus was not only unfair, but discriminatory
under the Human Rights Code.
While the arbitrator noted that the situation may not have
been "fair", the arbitrator found that the parties agreed
to specific collective agreement language and that a past practice
existed that dealt with the types of absences that were not
counted. Those non-counted or excluded absences were
employer-paid leaves under the collective agreement (e.g.,
jury duty, union leaves, holidays, etc.). Accordingly, there
was no breach of the collective agreement.
On the human rights issue, the arbitrator found that because
other individuals who missed work on unpaid leaves (but
otherwise had perfect attendance) also did not receive the
bonus, there was no differential treatment based on the
grievor's disability, and therefore no human rights
This case is important for two reasons:
It confirms an important principle that employees on leave of
absence are not generally entitled to workplace benefits/policies
that are based on actually working.
It confirms the appropriate comparator group when analyzing
whether the withholding of a benefit from an employee with a
disability is discriminatory. In this case, the appropriate
comparator group was not all employees, but all employees on an
unpaid leave. If there had been an employee on an unpaid leave
that had received the bonus while the grievor did not, the result
would have likely been different.
Employers with attendance bonuses should be aware that
withholding a bonus from an employee who misses work based on a
non-culpable absence (e.g., a disability leave) may not be a breach
of the Human Rights Code. In determining the
application of an attendance bonus policy, employers should ensure
that similarly situated employees (e.g., all employees on an unpaid
leave) are treated the same. If employees in the same
comparator group are treated differently (e.g., if absences based
on religious grounds are not counted, but absences based on a
disability are counted), a human rights breach may exist.
Employers should also observe the terms of any collective
agreements language and whatever past practices
exist. For example, if a collective agreement frames a leave
of abence as "working time", that absence should not be
Finally, employers should be mindful that, generally speaking,
statutory leaves will be protected such that they should not be
counted as an absence under the attendance bonus plan.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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