FPSLREB Decisions

Heard at Calgary, Alberta,
February 10 to 12 and November 12 and 13, 2015.
(Written submissions filed November 2 and December 14, 2015,
and January 15 and 20, 2016.)

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        The grievors in this decision are Randi Bodnar, Bonita Ebelher, Kendra Haldorson, Ron Harrison, Gallagher Keough, Mandelle Mitchell-Himler, Kevin Williams, and Candice Westbury (“the grievors”).They all grieved that the employer, the Correctional Service of Canada (“the employer”), violated article 19, “No Discrimination”, and on an individual basis, article 35, “Sick Leave With Pay”, or article 43, “Leave With Pay for Family-Related Responsibilities”, of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group (all employees), which expired on June 20, 2014 (“the collective agreement”).

2        All the grievors served notice to the Canadian Human Rights Commission (CHRC) that their grievances involved interpreting the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA). Pursuant to s. 210(2) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), the CHRC has standing in adjudication proceedings to make submissions and accordingly, it provided to the Board a brief on the CHRA’s application to these grievances.

3        The grievances were referred to adjudication in 2013.  On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

4        All the grievors were employed at the employer’s Bowden Institution in Bowden, Alberta (“the institution”). Each was, in his or her own way, affected by the implementation of the employer’s “National Attendance Management Policy” (“the NAMP”) in October 2011, and each alleged that the employer’s application of it discriminated against him or her and violated article 19 of the collective agreement on one or more of the prohibited grounds listed in the CHRA. Furthermore, in its application of the NAMP, the employer also violated article 35 or 43 of the collective agreement.

5        As a group, the grievors alleged that they have been systemically discriminated against by the use of average absenteeism rates to set the threshold for applying the NAMP. When applied to the fact situation of each of these cases, they alleged that the employer is guilty of systemic discrimination. Constantly monitoring the grievors for abuses of their leave entitlements as a result of applying the NAMP violated the employer’s obligation to accommodate their disability or family status obligations and was discrimination. Mixing culpable and non-culpable absences even after leave has been approved to determine the threshold for applying the NAMP is discriminatory.

6        According to the employer, the purpose of the NAMP is to ensure effective communications between an employee and his or her manager about absences, to identify accommodation needs, and to enable the employer to meets its obligation to accommodate those needs. With the exception of Ms. Ebelher, none of the grievors was placed on an attendance management program under the NAMP. She was, because she refused to meet with management about her absences. The NAMP did not violate the collective agreement or the CHRA in its creation; nor does it in its implementation or application.

7        To set the policy context for the grievances, Nathalie Dufresne-Meek, the employer’s director, workplace wellness and employee wellbeing [sic], testified first by the parties’ agreement. She is responsible for the employer’s return-to-work program, the duty-to-accommodate program, the NAMP, and the harassment-prevention program. Before that, she was the employer’s national return-to-work coordinator. She described the purpose of the NAMP as ensuring the consistent, supportive, and fair management of employee attendance while respecting the “spirit of the collective agreements”. It allows for communication between the employer and the employee and individual intervention within the wellness context.

8        The NAMP was implemented in October 2011. An email (Exhibit 5) was sent to all employees and bargaining agents announcing its launch. It is meant to help employees by assuring that their attendance is improved. A manager or supervisor and an employee may discuss any concerns noted with respect to the employee’s leave usage. The NAMP is to be applied with a case-by-case approach. Its purpose is not to obtain medical diagnoses from employees, and managers are instructed not to seek them.

9        At section 3, page 2 (Exhibit 3), the NAMP focuses on the opportunity to improve attendance and to identify if employer support is required to improve attendance and employee wellness. When the employer knows the reasons for an employee’s absence, doors are opened via discussion to identify how the employer can help the employee.

10        Supervisors and managers are required each month to review their employees’ leave usage. They are to look for repetitive patterns. Once a pattern is identified, the supervisor is to interview the employee to explore the reasons for the absence. The interviews are documented as memos to file and are placed in employees’ attendance files. They are confidential and available to the supervisor only on a need-to-know basis. These informal discussions have been formalized so that employees need not repeat themselves to other supervisors who have access to the memos. A given memo states that any leave issue was addressed and that it was not of particular concern, to avoid future discussions about the particular period it covered. The file is not brought forward to the next leave period for discussion.

11        If a need for accommodation is identified, leave related to it is not included in the calculation to determine whether the employee has met the threshold for the NAMP to apply. The employer looks at the combination of the employee’s use of sick and family related leave. Each situation is evaluated on its merits. Managers or supervisors are not to apply the NAMP arbitrarily. Each case is individual. Meeting the threshold is not the precursor to being placed on the NAMP. A discussion with the employee’s manager is required, following which a recommendation is made on whether to proceed with the NAMP.

12        The threshold to be met is calculated based on leave usage by occupational group across all employees of the employer. It is established yearly, on July 1, by taking the total number of hours of sick leave and family related responsibility leave used by all employees for an occupational group in a fiscal year and dividing that by the number of employees in the occupational group on March 31 (Exhibit 3, annex A). The grievors’ bargaining agent raised a concern about the leave usage being calculated by location. It thought it would differ significantly by group and location. The employer investigated that concern and determined that any such disparities were not significant enough to change how it calculated the peer thresholds. It recognizes the differences between groups and believes it is a fair and reasonable way to set the thresholds.

13        Step 1 of the NAMP is monthly monitoring, step 2 is pattern identification, and step 3 is interviews with managers, following which the NAMP stops if the manager thinks the leave usage was justified. If an employee is approaching the threshold or some irregularity arises, then the employee may be interviewed, one or more times. If after the interview the supervisor is satisfied that the leave usage was in fact justified, or if the supervisor concludes that the employee requires accommodation or support, then the interview is concluded.

14        If no accommodation is required, the supervisor emails the NAMP coordinator, copying the employee, and outlines the concerns with the employee’s attendance, including recommendations as to how they may best be addressed. Once the NAMP coordinator receives the email, he or she arranges another meeting with the employee, in which the circumstances of the particular case are again reviewed in the presence of the supervisor and at the employee’s option his or her union representative. The interview is corrective in nature, with the goal of improving attendance, and the NAMP coordinator documents it in the employee’s personnel file even if the employee is not placed on the NAMP.

15        If the NAMP coordinator believes that no accommodation or support measure is required, he or she prepares an action plan, which is shared at a fourth meeting, at which the plan is disclosed to the employee. At that point, the employee is considered on the NAMP for a period of three, six, or nine months.

16        If the employee has a serious chronic illness, which affects his or her attendance, it must be confirmed by a physician (Exhibit 3, page 4). The supervisor will work with the employee once the medical information has been received to determine the nature of the accommodation required. If clear medical information is presented, there is no need for another interview. In the absence of a diagnosis, the employer seeks the treating physician’s recommendation with respect to a suitable accommodation. The employer may also seek a functional limitations assessment.

17        During the period certified by the physician, the employer expects the manager or supervisor to check in with the employee regularly to see how he or she is recovering and to ensure that the employee knows that return-to-work, accommodation, and employee assistance programs exist.

18        NAMP threshold calculations, made in a spreadsheet entitled “NAMP Threshold by Location” (Exhibit 6), are based on leave usage by all employees, including sick leave used by those who are disabled. It is only for threshold purposes, and if an employee is chronically ill, is disabled, or needs accommodation, then he or she will not be considered for the NAMP.

19        The same period of leave should not be considered again if ongoing concerns arise throughout the year. Leave should not be documented more than once unless more than one meeting was held with an employee. If leave is justified, it is documented only once. When leave is justified, it is subtracted from the threshold calculation for that employee, regardless of whether it is culpable. If the employer is concerned that the leave is culpable, a different program is to be used to address it, and the culpable leave is deducted from the threshold calculation after the meeting. The NAMP coordinator has the discretion of whether to exclude injury-on-duty leave from the threshold calculation.

A. Ms. Ebelher

20        Ms. Ebelher was an employee classified CR-04 at the institution from 2003 until her retirement in 2013. She received an email from her supervisor on April 25, 2012 (Exhibit 10), advising her that she was to meet with him to discuss her attendance. She refused, by return email, and explained to him verbally that her reasons were between her and her physician. She described herself as a private person who did not want to discuss her situation when she was entitled to the leave under the collective agreement. As a result of her unwillingness to discuss, she was referred to the NAMP. She was so notified by an email from her manager (Exhibit 11) on April 27, 2012.

21        Between May 17 and August 20, 2012, Ms. Ebelher was absent from the workplace due to a disability. No one from the employer phoned her or checked up on her during that period.

22        On September 20, 2012, following a very short meeting with her manager, she received an email advising her that she was to meet with the deputy warden, who was the NAMP coordinator at the institution, concerning her supervisor’s NAMP referral in April 2012. At no point during this meeting did the grievor’s manager indicate that the meeting’s purpose was to discuss her attendance in fiscal year 2011-2012. Rather, the discussions were focused on the reason for her absence from April to August of fiscal year 2012-2013. As she had previously indicated to her manager, she was not willing to discuss an absence for which she had provided a medical certificate.

23        Ms. Ebelher did meet with the deputy warden as required and was put on an attendance management plan pursuant to the NAMP on October 19, 2012 (Exhibit 14). As a result, she was required to certify all sick leave in a reasonable time; otherwise, it would be leave without pay.

24        The discussions with the deputy warden, Ms. Ebelher’s manager, and her union representative never focused on which year she had exceeded the threshold; i.e., whether it was fiscal year 2011-2012 or 2012-2013. In 2011-2012, she took five days of family responsibility leave and two personal days. The rest of her leave was either vacation leave or sick leave, as reported in her leave report (Exhibit 9). At no point in that fiscal year did she have a discussion about an accommodation. Her manager was aware of a matter relating to her personal health and never raised any accommodation concerns. In April 2012, when the referral to the NAMP was made, the grievor’s manager was concerned about her attendance in 2011-2012, the period before her extended leave in summer 2012.

25        The employer’s representatives were most interested in the leave she had just taken in the summer of 2012. The deputy warden was aware that Ms. Ebelher had provided medical certificates for it and that they had been sent to her manager and to Human Resources. The proof was that the deputy warden referred to the treating physician who had signed the certificates by name, whom Ms. Ebelher had not mentioned before. The deputy warden asked her if she wanted to discuss the reasons for her absence. She was not willing to, believing that the medical certificates should have been sufficient.

B. Mr. Harrison

26        Mr. Harrison was employed with the employer for over 30 years. During that time, he had no issues with attendance until the NAMP was introduced. He has two adult daughters, one of whom has a serious mental illness. Courts have appointed him her legal guardian. She requires his continual attention. Due to her condition, critical situations may arise on occasion, which require that he go wherever she is and see to her health and safety.  He must also ensure that she attends all her medical appointments.

27        The other daughter, who was still a minor in 2011, was diagnosed with a serious heart condition for which she was hospitalized that year. She required regular Holter monitoring and visits to her cardiologist. Mr. Harrison was required to attend all those appointments as his wife could not take time off work. Whether for this daughter or his older daughter, when required to attend to his child’s needs, Mr. Harrison would take either family responsibility leave or vacation leave. In both 2011 and 2012, he used 37.5 hours of family related leave as allocated in the collective agreement.

28        On April 25, 2012, his manager advised him that he had gone over the NAMP threshold. He attended a meeting at which he discussed his use of family responsibility leave as well as the amount of sick leave he had used due to the stress of his family situation. He was referred to the NAMP coordinator, as had been Ms. Ebelher.

29        He met with the deputy warden on October 16, 2012, and based on the discussions at that meeting, it was decided that no attendance action plan was required, although his attendance was to be monitored. This meant that his manager would control his comings and goings and would look for a pattern and monitor the amount of leave he used, even though the manager was well aware of Mr. Harrison’s family situation.

30        For 27 years, Mr. Harrison had no pattern of absenteeism that the employer saw the need to address. In his last three years of employment, he received letters about his leave usage.

31        In fiscal year 2012-2013, as he neared the NAMP threshold, he was reminded that his attendance was still being monitored. He filed his grievance about the NAMP being applied to him in fiscal year 2012-2013.

C. Ms. Haldorson

32        Ms. Haldorson took 37.5 hours of family responsibility leave when her daughter required emergency surgery, in addition to 87.5 hours of sick leave she had used. She was referred to the NAMP by her manager, Nancy Gitzel. At the meeting Ms. Haldorson was required to attend with the deputy warden, she was asked if she had any personal medical condition or if someone in her family did, which would explain her absences. She told the deputy warden about her daughter and that Ms. Gitzel had told her that given the circumstances, she could use her personal sick time to cover some of the time required to be with her daughter during her illness and recovery.  Ms. Gitzel did not recommend that she be placed on an action plan.

D. Ms. Westbury

33        Ms. Westbury was also referred to the NAMP by Ms. Gitzel when she exceeded the threshold of 111.8 hours of combined sick and family responsibility leave. At the relevant time, she had used 228.5 hours. Over 52 hours of that time was certified sick leave. In 2010, she was absent on disability leave for seven months. In 2011, when she returned to the workplace, she had a negative balance in her sick leave account and therefore was over the NAMP threshold. At the meeting she had with Ms. Gitzel before a letter (Exhibit 20) was issued to her, Ms. Gitzel advised her that it was unfair to refer her to the NAMP due to her chronic illness and that Ms. Westbury had kept her manager updated on her situation.

34        Ms. Westbury was required to meet with the deputy warden to explain the circumstances even after Ms. Gitzel advised her that there was no need to. At the meeting, Ms. Gitzel told her that there was no need to explain the reasons for her absences. Following the meeting, she was advised by the deputy warden that her attendance would be monitored.

E. Mr. Keough

35        Mr. Keough broke his foot and required surgery. As a result, he was off work for a period of eight weeks, which exceeded the NAMP threshold. He returned to work for three months and then was off again for one month after further surgery. He met with his manager to discuss his leave and was advised that she had no concerns due to his illnesses. However, he received a letter from his manager documenting the meeting (Exhibit 21), which was put on his personnel file and remained there for one year. He had never had any issues with his leave before this, and it was evident that he required the leave because of his broken foot. All the sick leave for this issue was certified.

F. Ms. Bodnar

36        Ms. Bodnar received a memo dated July 3, 2012 (Exhibit 22), advising her that she was required to meet with the deputy warden. She met with Ms. Gitzel earlier that day and discussed the reasons for her absences. She told Ms. Gitzel that her mother had become debilitated and bedridden due to a progressive degenerative disease. Her mother refused to go to a home, so Ms. Bodnar was responsible for her care and for her personal business affairs. She used family responsibility leave and vacation. She also used sick leave frequently due to illness as she was frequently exposed to illness at work. At the first sign of illness, she took time off to avoid exposing her mother to a more serious illness.

37        Ms. Bodnar was called into a meeting with the deputy warden. No note was discussed, so she thought that all was good. She was told that her attendance would be monitored, which was confirmed by letter on October 19, 2012 (Exhibit 23). She never checked her personnel file to see if the letter was there, only to see if there was any indication she had been placed on attendance management. Her union advisor told her that she was the only person placed on attendance management pursuant to the NAMP.

G. Ms. Mitchell-Himler

38        Ms. Mitchell-Himler received an attendance letter from her supervisor on June 18, 2012, when her combination of sick leave and family related leave amounted to 186.75 hours. Her supervisor recommended that she not be placed on the NAMP because over 100 hours of the 186.75 hours was certified sick leave, and the remaining 86.75 hours of unscheduled leave was below the employer’s 111.8 hours’ threshold.

39        Ms. Mitchell-Himler’s husband was employed in the oil fields, which left her home alone with their son. He required a catheter and medication due to a bladder problem. She took family related leave to be with him. Her supervisor was aware of her family situation.

40        After she received the letter from her supervisor (Exhibit 24), she met with the deputy warden twice. At the first meeting, her supervisor told the deputy warden that she was aware of the reasons for Ms. Mitchell-Himler’s leave usage and indicated that in her opinion, she should not be placed on the NAMP. Despite that, Ms. Mitchell-Himler received a notice from the deputy warden that she had been placed on attendance monitoring for three months (Exhibit 25).

H. Mr. Williams

41        Mr. Williams received a similar letter from his supervisor when his combination of sick leave and family related leave amounted to 148.725 hours. Like Ms. Mitchell-Himler, Mr. Williams’ supervisor recommended to the deputy warden that Mr. Williams not be placed on attendance management. His supervisor was aware that he had taken 37.5 hours of justified family related leave and why he required sick leave for the remaining 111.225 hours.

42        At his meeting with the deputy warden, Mr. Williams was advised that there was no need to monitor his attendance in the future. However, the letter from his supervisor (Exhibit 26) would be placed on his personnel file. Although he never checked to see if it was there, the employer’s response to his grievance indicated that it had been removed.

I. Ms. Nancy Shore

43        Ms. Shore is the assistant warden, operations, at the institution and at the time these grievances arose was the acting deputy warden. She was responsible for administration, staffing, labour relations, human resources, and security and any issues arising from those areas at the institution. She was the coordinator of the NAMP at the institution. She reviewed all staff attendance monthly, received referrals from managers, and decided whether to put employees on attendance management under the NAMP. She met with everyone who exceeded the NAMP threshold, regardless of their managers’ recommendations.

44        She had no personal relationships with any of the grievors, although she did meet with each of them after she received NAMP referrals from their managers. The purpose of each meeting was to speak to the grievors about their leave usage and to explain that the program was not disciplinary. The intention of the meeting was to develop a plan to assist the grievors with issues outside of work that prevented them from attending regularly.

45        The NAMP was a new program and was aimed at monitoring attendance. Ms. Shore wanted to ensure that her managers were dealing with it and with attendance properly, so she met with Mr. Harrison despite that fact that his manager recommended that he not be placed on the NAMP (Exhibit 16). Mr. Harrison was called to a meeting with her to educate him and his manager on the NAMP. She did not ask Mr. Harrison to bring any information about his daughters, but he did bring their medical information. Ms. Shore took a quick look at the materials but did not keep any of them. Mr. Harrison was not put on an action plan.

46        Ms. Gitzel was the manager who wrote NAMP letters to Ms. Haldorson (Exhibit 19), Ms. Westbury (Exhibit 20), Ms. Bodnar (Exhibit 22), Ms. Mitchell-Himler (Exhibit 24), and Mr. Williams (Exhibit 26). Ms. Shore met with all those employees to make sure that Ms. Gitzel was applying the NAMP properly. None of the employees was placed on an action plan. Each had proper reasons for their leave, which their managers had properly addressed. Ms. Shore placed Ms. Mitchell-Himler on a three-month monitoring period. In her letter to Ms. Bodnar (Exhibit 23), Ms. Shore confirmed her practice of reviewing all staff leave every month.

47        Ms. Ebelher’s situation was ongoing when Ms. Shore took on her acting assignment. Ms. Shore was aware that Ms. Ebelher had been off sick for a period leading up to the meeting to discuss her attendance. Ms. Shore met with Ms. Ebelher in September 2012 based on Ms. Ebelher’s manager’s recommendation that she be placed on attendance management. The manager’s memo was the only information that she had when she met with Ms. Ebelher; the manager had provided no other information.

48        At the meeting, Ms. Ebelher and Ms. Shore intended to discuss Ms. Ebelher’s attendance the previous fiscal year, 2011-2012. Ms. Ebelher indicated to Ms. Shore that the leave was hers and that she would use it if she needed to. Ms. Ebelher’s leave in fiscal year 2012-2013 due to illness might have entered into the discussion because of the rolling calendar Ms. Shore used to assess employee attendance.

49        Ms. Shore then explained the NAMP’s purpose, but Ms. Ebelher would not entertain any discussion about her leave. Ms. Shore did not recall Ms. Ebelher making any request for accommodation or providing any explanation for her leave. After the meeting, Ms. Shore did not have a clear sense of the reasons for Ms. Ebelher’s leave.

50        Ms. Shore concurred with the manager’s suggestion and required Ms. Ebelher to provide a medical certificate for every absence due to illness effective October 19, 2012 (Exhibit 14). If she failed to, the result would have been the leave being recorded as without pay. When arriving at this decision, the only leave considered was that taken before April 1, 2012; leave taken in the summer of 2012 was not discussed because at the meeting, no information was available to her on it.

51        Despite the NAMP’s requirement that all interviews be recorded in a memo to file, which was to be kept on the employee’s file (Exhibit 3, page 4), all letters issued to the grievors following the NAMP meetings (Exhibits 11, 14, 16, 17, and 19 to 26) were kept on file in Ms. Shore’s office in binders. Copies were not kept elsewhere and were not placed on the grievors’ personnel files. Ms. Shore did not have a human resources representative available to her at the institution and could not access personnel files. As a matter of convenience, she maintained the records in her office, contrary to policy. She never communicated this information to the grievors unless they specifically asked where she kept the files.

52        The binders in which these letters were held were never purged. If a meeting occurred that resulted in no action, the letters were placed in an inactive binder and were retained there. For those who were placed on attendance management programs, the letters were placed in an active binder and were retained there. The grievors were left with the impression that the letters sent to them were placed on their personnel files.

53        The letters in those binders, both active and inactive, were then used as references when Ms. Shore conducted her monthly attendance reviews. The active binders were referenced as required to ensure that employees were progressing as planned to improve their attendance.

54        When she met with Ms. Mitchell-Himler, Ms. Bodnar, Ms. Westbury, and Mr. Williams, Ms. Shore explained that the meetings’ purpose was to ensure that their manager was fulfilling her responsibility under the NAMP. If a supervisor had recommended against putting restrictions on an employee’s use of leave, Ms. Shore still interviewed the employee and demanded full disclosure of the employees’ health issues. She would then decide on the action to take on a case-by-case basis. The nature of the decision ranged from no action to monitoring or to placing the employee on an action plan under the NAMP. After a three-month review, she would re-evaluate her decision and make the changes she deemed required.

55        Ms. Shore did not remember discussing the possibility that Ms. Bodnar required accommodation. She did not remember meeting with Mr. Keough. She did recall meeting with Ms. Westbury despite the supervisor’s recommendation. She also recalled meeting with Ms. Haldorson and ignoring the recommendation made by her supervisor. Mr. Harrison provided the information concerning his daughters’ health at his meeting, but Ms. Shore decided to monitor his attendance on a monthly basis. Only those employees who were placed on an action plan, such as Ms. Ebelher, did Ms. Shore consider “placed on the NAMP”. Monitoring attendance was not equivalent to being placed on the NAMP.

56        Ms. Mitchell-Himler was treated differently from Mr. Harrison because he had provided documents to support his leave. Ms. Mitchell-Himler expected that the employer would rely only on her word that her child was having medical issues. The amount of disclosure an employee made went directly to the type of decision Ms. Shore made. Ms. Ebelher would not discuss her issues, which resulted in her being placed on the NAMP despite the fact that she had submitted doctor’s certificates to justify her use of sick leave to her supervisor. Ms. Shore did not see those certificates and did not ask the supervisor or the human resources officer responsible for the institution whether they were aware of any such documents.

III. Summary of the arguments

A. For the grievors

57        The employer’s design and administration of the NAMP produced an arbitrary standard that discriminated against the grievors on the basis of two prohibited grounds: disability and family status. The employer made no attempt to accommodate employees within the established standard; employees were initiated into the NAMP before the employer made any effort to determine whether their absences were attributable to any of the prohibited grounds under the CHRA. As such, the NAMP clearly violated the collective agreement, and the grievors are entitled to such remedies as are within the Board’s authority to order.

58        In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 (“Meiorin”), the Supreme Court of Canada established a three-step test for determining whether an employer has established on the balance of probabilities that a prima facie discriminatory standard is a bona fide occupational requirement (“BFOR”). Once an employee has established a prima facie case of discrimination, the burden shifts to the employer to prove that a BFOR exists. The employer must show the following (for that case):

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

(2) The standard was adopted in the belief that it was necessary to the fulfilment of that legitimate purpose.

(3) The standard is reasonably necessary to accomplish the legitimate work-related purpose.

59        The standard is reasonably necessary only if it was impossible to accommodate the needs of employees without causing the employer undue hardship. If a reasonable alternative exists to burdening members of a group with a given rule, then that rule will not be a BFOR. When developing a program such as the NAMP, the employer must consider individuals (see Meiorin, at para. 55). Individual assessments must not be unreasonably refused (see Coast Mountain Bus Company Ltd. v. Canadian Auto Workers, Local 111,[2004] B.C.C.A.A.A. No. 325(QL) at para. 199).

60        In keeping with the law articulated by Meiorin, courts and adjudicators have found that an attendance management program must not be structured or applied in a manner that is arbitrary, discriminatory, or in bad faith (see York University v. York University Staff Association, 2012 CanLII 41233 at para. 32, and Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW - Canada), Local 111, 2010 BCCA 447 at paras. 32 and 96 (“Coast Mountain 2010”)). An attendance management program is void and unenforceable to the extent that it conflicts with the parties’ collective agreement (see York University, at para. 32, Kirby v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 92 at paras. 45 and 47, and London (City) v. CUPE, Local 101, [2009] O.L.A.A. No. 425 (QL) (“London (City) 2009”).

61        The NAMP created a standard that discriminated against employees on the basis of prohibited grounds. The standard is both formulated and applied in a manner that is discriminatory and fails to accommodate the needs of the protected groups to the point of undue hardship. An attendance management program must not be structured in a manner that is arbitrary, discriminatory, or in bad faith. The employer must demonstrate that incorporating individual accommodation within the chosen standard is impossible, short of undue hardship (see York University, at para. 32, and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 42 (“Grismer”).

62        The NAMP does not distinguish between culpable and non-culpable absences. Mixing non-culpable and culpable absences to calculate whether an employee falls above or below the threshold is discriminatory. Non-culpable absences typically intersect with prohibited grounds of discrimination, such as disability and family status. Since no attempt was made to distinguish between culpable and non-culpable absences to determine whether an employee exceeded the employer’s threshold, persons with disabilities and with family obligations, such as the grievors, were essentially treated from the outset as attendance problems and were fast-tracked into the NAMP.

63        In Coast Mountain 2010, the employer failed to demonstrate accommodation to the point of undue hardship when it included absences attributable to an employee’s disability to calculate the standard for moving employees to the next level of the attendance management program. The mixing of culpable and non-culpable absences meant that employees with disabilities became eligible for the program, and ultimately for termination, at an accelerated rate in comparison to their non-disabled coworkers (see Coast Mountain 2010, at paras. 76 to 78 and 96).

64        Likewise, by mixing culpable and non-culpable absences to determine whether an employee meets the threshold for inclusion in the NAMP, employees with disabilities are initiated into the NAMP, while employees with higher rates of culpable absences may never come in contact with the NAMP, which amounts to systemic adverse treatment.

65        The threshold, as calculated by the employer, is in itself discriminatory. The average rate of absenteeism used to establish the threshold mixes culpable and non-culpable absences. This lack of nuance creates a standard that is in itself arbitrary. Averaging absences in this way fails to take into account individual circumstances that have a nexus with the prohibited grounds. If the standard adopted by the employer is prima facie discriminatory, the onus is on it to prove that incorporating aspects of individual accommodation within the standard was impossible short of undue hardship (see Coast Mountain Bus Company Ltd.,at para. 199, Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2003 CHRT 2 at para. 46, aff’d 2005 FCA 311, and Grismer at para. 42). In Coast Mountain 2010, at para. 76, the Court found that the employer had discriminated against disabled employees by using average absenteeism rates to establish attendance parameters without regard to the employees’ disabilities.

66        Attendance management programs must not be applied in a discriminatory manner (see York University, at para. 32). As the standard averaging rate and threshold calculations used by the employer are discriminatory, the application of that standard is inherently discriminatory. Disabled employees are monitored and called in for meetings and have their encounters with the NAMP documented as a consequence of their accelerated entry. Thus, mixing culpable and non-culpable absences leads to a discriminatory standard that in turn is discriminatory in its application. The NAMP seeks to monitor patterns of absenteeism without distinguishing between culpable and non-culpable absences. In Kirby,at para. 45, the former Board noted that absences over which a grievor has no control should not be considered when establishing a pattern for any intent or purpose.

67        Likewise, the way the employer holds and documents mandatory meetings for all employees who approach or exceed the NAMP threshold is also arbitrary. The threshold does not distinguish between culpable and non-culpable absences, and initiation into the NAMP via the mandatory meeting was triggered regardless of whether an employee could attribute his or her absences to a prohibited ground such as a disability or family status (see Ottawa (City) v. Ottawa Carleton Public Employees Union, Local 502, [2008] O.L.A.A. No. 207 (QL) at para. 64, and Sobeys Milton Retail Support Centre v. United Food and Commercial Workers Canada, Local 175, 2010 CanLII 41119).

68        Managers should have the discretion to make decisions about the consequences that flow from the triggering event. In the NAMP, the triggering event leads to a mandatory meeting that must be documented and added to the employee’s personnel file, in perpetuity. The consequences that flow from the triggering event under the NAMP are non-discretionary (see David Thompson Health Region v. United Nurses of Alberta, Local 2, [2009] A.G.A.A. No. 57 at para. 56, Ontario Public Service Employees’ Union, Local 256 v. Hamilton (City), [2009] O.L.A.A. No. 383 (QL) at para 27. and London (City) 2009, at paras. 32 and 35).

69        Although the NAMP describes the encounters with management as informal, employees are invited to have a bargaining agent representative present, and all meetings are formally documented and added to employees’ personnel files. Even when an employee establishes that his or her above-average absenteeism rate is due to disability or family status, a memo documenting the employee’s NAMP meeting is placed on his or her personnel file. At this point in the NAMP, the employer knows the prohibited ground, and yet the employee’s opportunities for promotion or transfer are potentially at risk because his or her disability (or family status) led to an encounter with the NAMP. That more closely resembles the discipline process rather than informal discussions about innocent absenteeism (see London (City) 2009,at para. 33; World Color v. CEP, Local 525-G, 2010 Carswell BC 4026 at paras. 24 and 28 to 31, and St. Michael’s Extended Care Centre v. CHCG, 1994 Carswell 1101 at para. 51).

70        In the case of Ms. Ebelher, the employer was given documents certifying that she had a disability. It was aware that her absences were directly related to her disability. Despite this, the employer refused to recognize the disability and placed her on the NAMP. It is discriminatory for the employer to advance an employee through an attendance management program without regard for the employee’s disability and need for accommodation (see Hamilton (City) v. Canadian Union of Public Employees, Local 5167, [2003] O.J. No. 657 (QL) at paras. 6 and 8, and Coast Mountain Bus Company Ltd.,at paras. 201 and 216). The employer will argue that it was unaware that Ms. Ebelher had a disability as she would not discuss the reasons for her absence at her NAMP meeting.

71        The Supreme Court of Canada articulated a multi-dimensional, flexible approach to defining disability for the purposes of human rights legislation (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27 at paras. 76 and 77). Following that flexible approach, the Canadian Human Rights Tribunal (CHRT) observed that disability in a legal sense consists of a physical or mental impairment that results in a functional limitation or is associated with a perception of impairment (Mellon v. Human Resources Development Canada, 2006 CHRT 3 at paras. 84, 88, and 89). No distinction should be made between employees with chronic or recurring disabilities and employees with disabilities that do not qualify as recurring or chronic (see Coast Mountain Bus Company Ltd., at paras. 111 and 112). In Mellon,the CHRT found that not solely those disabilities that constitute a permanent impairment must be considered.

72        The way the employer exercised its rights under the NAMP was mechanical and did not consider the grievors’ circumstances. Each grievor received a letter advising him or her that he or she had met the threshold, which was in itself discriminatory, and was drawn into the NAMP, which directly impacted his or her continued employment. The employer chose to combine culpable and non-culpable absences in its attempt to control absenteeism in the workplace. The grievors’ involvement in the NAMP was triggered by their use of sick leave and family related leave guaranteed to them under the collective agreement, which violated that agreement (see Kirby,at paras. 40 to 43).

73        The NAMP (Exhibit 3) directs supervisors to look at absences and other patterns, although it does not clearly delineate what the supervisor should look for. Looking at patterns does not tell anyone what is going on with an individual. The NAMP’S tone is disciplinary. The letters issued to the grievors form part of their permanent employment record and may have a negative impact on their future employment based on the employer’s discriminatory practices. Even though the process is intended to be informal at the discussion stage, letters were drafted drawing the grievors into the NAMP, which has the potential to negatively impact their employment. The NAMP’s tone, including the offer of union representation, memos, recording meetings, looking at patterns, monitoring employees, and drafting action plans, imply that the NAMP is a disciplinary process related to the use of family related and disability leave.

74        The employer has the duty to accommodate employees if required, and in the case of an illness, it matters not whether it is chronic or serious. It is illegal to limit accommodations only to cases of serious or chronic illnesses. The mechanical application of the program and the inclusion of prohibited grounds has resulted in discrimination against the grievors in their employment. In Ms. Ebelher’s case, it was both direct and systemic discrimination; for the others, it was a case of systemic discrimination.

75        The Board has the authority to award damages to the grievors, which would recognize the employer’s discrimination against them. In this case, the employer’s action of putting a discriminatory policy in place was deliberate, wilful, and reckless.

B. For the CHRC

76        The CHRC did not attend the hearing and made its submissions in writing by presenting a brief of the law for the Board’s consideration. It was then submitted to the other parties for their comments, which were reflected as part of their arguments. Likewise, briefs they prepared were submitted to the CHRC for comment.

77        The Board’s jurisdiction to deal with whether the application of the NAMP is discriminatory is limited to the grounds of discrimination listed in the collective agreement, as stated by the employer. Chamberlain v. Canada (Attorney General), 2015 FC 50, is distinguishable. It addressed the nature of an adjudicator’s jurisdiction under s. 226 of the Act in the absence of a collective agreement. The Federal Court upheld the adjudicator’s decision that s. 226 did not give him jurisdiction over a “stand-alone” allegation of human rights violations.

78        In this case, the grievors did have a collective agreement that contained a non-discrimination clause; their grievances alleged that discrimination arose from breaches of the collective agreement. They filed grievances under article 19 of the collective agreement pursuant to s. 208 of the Act and then referred them to adjudication pursuant to s. 209. Therefore, the Board is properly seized of the jurisdiction to deal with these cases.

79        In their grievances as a group, the grievors alleged discrimination on the basis of disability or family status in the NAMP’s application, in violation of article 19 of the collective agreement. Based on the language of ss. 208 and 209 of the Act, the Board has jurisdiction only over the grievances referred to adjudication, and it is limited to the grounds of discrimination cited in them.

80        The human rights issues raised by these cases require the Board to answer the following two questions:

1. Has each grievor proven a prima faciecase that he or she was treated in an adverse and differential manner on the basis of one or more prohibited grounds of discrimination by being subjected to the employer’s NAMP?

2. Does the employer have a bona fide justification for applying the NAMP?

81        The relevant CHRA provisions are ss. 3 and 7.

82        The initial onus was on the grievors to establish prima facie cases of discrimination on at least one of the grounds alleged. The threshold for proving such a case is extremely low. A prima facie case covers the allegations made, and if they are believed, that is complete and sufficient to justify a decision that the grievors were discriminated against and demands that the employer answer (see Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 (“O’Malley”) at 558). Once the grievors have established a prima facie case, they are entitled to relief in the absence of justification by the employer (see Ontario Human Rights Commission v. Etobicoke, [1982] 1 SCR 202 at 208).

83        When a prima facie case of discrimination is established, the burden of proof shifts to the employer to demonstrate that the alleged discrimination was justified based on a BFOR. The test for finding a prima facie case of discrimination on the basis of disability was set out as follows in Health Employers Association of British Columbia (Kootenay Boundary Regional Hospital) v. British Columbia Nurses’ Union, 2006 BCCA 57 at para. 38:

[38] ... Therefore, under s. 13(1)(a), to establish a prima facie case of discrimination, an employee must establish that he or she had (or was perceived to have) a disability, that he or she received adverse treatment, and that his or her disability was a factor in the adverse treatment....

84        To prove a prima facie case of discrimination, the grievors had to establish that they were treated in an adverse and differential manner in employment, contrary to s. 7 of the CHRA, when they were subjected to the NAMP and to how it was applied. The grievors did not need to show that the discrimination was intentional (Bhinder v. Canadian National Railway Company, [1985] 2 SCR 561 at 570). The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities.

85        When a prima facie case of discrimination is established, a grievor is entitled to relief in the absence of justification by the employer. According to Meiorin, for justification, the employer must demonstrate the following on the balance of probabilities:

1. The employer adopted the standard for a purpose or goal rationally connected to the function being performed;

2. The employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate purpose or goal; and

3. The standard is reasonably necessary to the accomplishment of that legitimate purpose or goal, in the sense that it is impossible to accommodate individuals sharing the characteristics of the grievor without incurring undue hardship.

86        A prima facie discriminatory standard can be justified only if the employer meets its burden of proving that it considered and rejected all viable forms of accommodation on the grounds that they would have caused it undue hardship.

87        Case law has not determined that a mandatory attendance management policy is automatically discriminatory. However, a unilaterally promulgated attendance management program is void and unenforceable to the extent that it conflicts with a collective agreement or applicable legislation. Furthermore, an attendance management program must not be structured or applied in a manner that is arbitrary, discriminatory, or in bad faith (see York University,at paras. 31 and 32).

88        In Coast Mountain Bus Company Ltd.,the British Columbia Court of Appeal rejected claims that interviews at levels 1 and 2 of the program at issue in that case were discriminatory as interviews at level 1 were held to make employees aware of the employer’s concerns with their attendance records, and no adverse treatment flowed from them. At level 2, the purpose of the interview was to obtain a medical assessment to determine whether the employee in question had a medical disability. The Court of Appeal confirmed that it is not discriminatory to require an employee to establish that his or her absences were due to a disability. However, at the point at which the employee’s employment was put in jeopardy, the attendance management program became discriminatory.

89        The Coast Mountain 2010 decision established that an attendance management program with a step-level system must ensure that it excludes absences due to any disabilities employees may have before arriving at the critical threshold level. If it does not distinguish absences related to the employees’ disabilities before meeting a critical level of absences, placing employees at risk of dismissal if they exceed a set threshold of absenteeism constitutes adverse treatment based on disability and is discriminatory. Finally, if both an employee with a disability and one without a disability are absent more that the average rate during the following year for reasons unrelated to disabilities, the employee with disabilities will be subject to termination for failing to meet attendance parameters. That is discriminatory.

90        In addition to disability-related absences, it is important that an attendance management program make allowances for excluding non-culpable absences based on any of the prohibited grounds from the total calculation. The employer’s attendance management program must ensure that it does not adversely affect an employee on any of the prohibited grounds. It must strike a good balance between the need to ensure the valid objective of attending work and the duty to accommodate employees with prohibited-grounds-related absences. The program must exclude absences related to any of the prohibited grounds. It must ensure that the employer does not consider innocent absenteeism, such as an absence related to a prohibited ground, unless and until it tries to accommodate the employee to the point of undue hardship. Under the program, the employer must consider only culpable absences to impose discipline. Any attendance management program must adhere to the CHRA. The employer’s policy as written as well as how it is applied must be considered in determining whether the attendance management program is discriminatory.

91        The overall language of the employer’s NAMP policy in this case is broad and general and does not sufficiently explain the human rights principles that require that a balance be struck between the policy’s objectives and ensuring that protected grounds are excluded from the threshold calculation. At page 4 of the NAMP (Exhibit 3), it states that “... the need for accommodation measures should be considered” and that “... accommodations may be considered in circumstances where employees are experiencing problems of a personal nature”. Instead, the language should explicitly mention the protected grounds and state in categorical terms that accommodation measures must be considered.

92        The employer’s NAMP may meet parts 1 and 2 of the Meiorin test, but the policy as written and the manner in which it is applied may not meet part 3 of that test. There is insufficient language detailing that all grounds of discrimination must be exempted from consideration. Furthermore, it does not provide that all prohibited-grounds-related absences be excluded from the total count of absences as a form of accommodation.

93        The NAMP in question mentions the need to investigate absences but does not sufficiently provide for the need to exclude prohibited-grounds-related absences. It does not provide supervisors applying the NAMP guidance when ensuring that in practice the principles established by human rights case law are fully adhered to. By not clearly and fully reflecting the principles enunciated in the case law, and by not providing for the exclusion of absences related to all the protected grounds, the NAMP appears discriminatory and is susceptible to having an adverse impact on employees based on prohibited grounds of discrimination enumerated in s. 3 of the CHRA.

C. For the employer

94        None of the grievors has satisfied his or her onus of establishing a prima facie case of discrimination on the basis of either disability or family status. Moreover, in Ms. Ebelher’s case, the employer cannot be faulted for any discrimination given her repeated and categorical refusal to cooperate in the NAMP. The request that she certify any future absences for a three-month period was not an automatic step under the NAMP bur rather a discretionary decision resulting from her individual circumstances.

95        The following four questions are to be answered when determining the proper disposition of these grievances:

(1) Does the Board have jurisdiction to consider the CHRC’s allegation that the NAMP must specify all prohibited grounds?

(2) Have any of the grievors made out a case of prima facie discrimination on the basis of disability or family status?

(3) Did Ms. Ebelher cooperate in the NAMP?

(4) Has the employer provided a reasonable explanation for requiring that Ms. Ebelher certify all future sick leave for a three-month period? If so, did Ms. Ebelher demonstrate that that explanation was merely a pretext for discrimination?

96        With respect to the first question, the employer submits that the Board is without jurisdiction to consider the CHRC’s allegations that the NAMP should reference all prohibited grounds of discrimination given that this is prospective or was never raised during the grievance process by any grievor.

97        With respect to the second question, no grievor has established a case of prima facie discrimination.

98        With respect to the third, Ms. Ebelher failed to cooperate in the process; consequently, the employer cannot be faulted for discrimination, if any.

99        Finally, with respect to the fourth question, the employer provided a reasonable explanation for requiring Ms. Ebelher’s medical certificates. She did not demonstrate that its explanation was merely a pretext for discrimination.

100        Sections 7 and 11.1 of the Financial Administration Act (R.S.C. 1985, c. F-11; FAA) grant the Treasury Board broad powers to set the general administrative policy for the federal public service, organize the federal public service, and determine and control the personnel management of the federal public service. It is well established that in exercising any management functions conferred under the FAA, the employer may do that which is not specifically prohibited by a collective agreement or a statute (see ss. 7 and 11 of the FAA; ss. 6 and 7 of the Act; Public Service Alliance of Canada v. Treasury Board (Department of Veterans Affairs), 2013 PSLRB 165 at para. 83, affirmed by the Federal Court of Canada in 2014 FC 1152; and Professional Institute of the Public Service of Canada v. Treasury Board (Department of Human Resources and Skills Development), 2014 PSLRB 18 at para. 48).

101        When assessing a collective agreement dispute, the Board must adhere to the confines of its statutory authority under the Act and cannot trespass in areas in which the legislature has not assigned it express authority. Unlike the courts, the Board does not have inherent jurisdiction (see Wray v. Treasury Board (Department of Transport), 2012 PSLRB 64 at para. 22, and Chamberlain,at paras. 39 to 42). Section 209(1) of the Act directs that only those grievances presented up to and including the final level in the grievance process can be referred to adjudication. In light of that, the Board is without jurisdiction to consider the CHRC’s allegations that the NAMP is flawed because it does not list all prohibited grounds of discrimination on the basis that that allegation is prospective and because it was not presented at up to and including the final level in the grievance process.

102        Furthermore, s. 209(1)(a) of the Act limits the jurisdiction of the Board to grievances that relate to the interpretation or application in respect of the employee of a provision of a collective agreement. Accordingly, the Board is without jurisdiction to interpret an employer policy established under its FAA authority unless that policy has been expressly incorporated in the collective agreement or is expressly prohibited by the collective agreement. Otherwise, the Board is without jurisdiction to consider stand-alone allegations relating to the policy in question (see Canada (Attorney General) v. Lâm, 2008 FC 874 at para. 28, and Chamberlain,at paras. 39 to 42).

103        The pith and substance of these grievances is an allegation that the employer’s actions, all of which stem from applying the NAMP, are discriminatory and contrary to clause 19.01 of the collective agreement. The NAMP has not been incorporated into the collective agreement. As such, the Board’s jurisdiction is limited to determining whether the application of the NAMP violates clause 19.01, and nothing more. The Board must assess whether the employer’s actions were discriminatory within the meaning of the collective agreement.

104        Section 7 of the CHRA, which has been incorporated into clause 19.01 of the collective agreement, provides that it is a discriminatory practice, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground (see Taticek v. Treasury Board (Canada Border Services Agency), 2015 PSLREB 12 at para. 102). To establish that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination, which covers the allegations made and which, if believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the employer (see Taticek,at para. 103).

105        To establish a prima facie case of discrimination, a grievor has the burden of demonstrating that he or she has a disability, that he or she has experienced an adverse impact with respect to his or her employment, and that his or her disability was a factor in that adverse impact (see McLaughlin v. Canada Revenue Agency, 2015 PSLREB 83 at paras. 153 and 154, and Chênevert v. Treasury Board (Department of Agriculture and Agri-Food), 2015 PSLREB 52 at para. 137).

106        The employer does not dispute that the grievors Ms. Mitchell-Himler, Mr. Keogh, and Ms. Westbury were absent due to disability within the meaning of the CHRA. However, no other grievor demonstrated that his or her absences were due to a disability. Not every physical or emotional ailment amounts to a disability within the meaning of the CHRA (see Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35 at paras. 130 and 131). To obtain the CHRA’s protection at adjudication, an employee must provide a diagnosis with specificity and substance. A disability is not established during the hearing by virtue of the employee’s mere assertion that one exists or the production of a brief medical note without the benefit of the doctor’s testimony (see Halfacree v. Canada (Attorney General), 2014 FC 360 at paras. 35 to 40 and 45 (affirmed in 2015 FCA 98), Riche, at paras. 130 and 131, and Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68 at paras. 30 to 33).

107        Depression and stress are commonly experienced by many people in the course of their working lives; however, that does not make either one disabling. The fact that one experiences such conditions does not establish a prima facie case of disability or of discrimination on the basis of disability (see Halfacree, at paras. 35 to 40 and 45, and Riche, at paras. 130 and 131).

108        The grievors Ms. Bodnar and Mr. Harrison provided no evidence to support their respective claims that they were disabled. Ms. Bodnar’s evidence was limited to a statement that she requested sick leave when she started feeling sick without providing any details of the illness or ailments in question. Similarly, Mr. Harrison asserted that his sick leave was due to stress, without providing any specificity. That lack of evidence is fatal to their respective claims.

109        By the same token, there is no evidence that Ms. Ebelher’s absences in fiscal year 2011-2012 were related to any disability within the meaning of the CHRA. There is no evidence that her absences during the period were assessed under the NAMP. Moreover, a doctor’s vague note (Exhibit 12), without the doctor’s testimony, did not provide the necessary diagnosis with specificity to substantiate that the ailment constituted a disability at the time of the NAMP assessment or that these absences were considered retroactively.

110        None of the grievors demonstrated that he or she suffered any adverse impact as a result of his or her involvement in the NAMP process. Not every distinction is discriminatory as s. 7 of the CHRA qualifies the differential treatment with the term “adversely”. “Adverse” is an adjective that in its ordinary meaning means “harmful”.

111        Finally, the adverse differential treatment must be based on a prohibited ground of discrimination (see Cheung v. Treasury Board (Correctional Service of Canada), 2014 PSLREB 1 at paras. 63 and 65, and McLaughlin, at paras. 128, 153, and 154). It is not enough for the grievor to think or to have the impression that he or she suffered an adverse effect and that the protected characteristic was a factor in the manifestation of the adverse effect. It must be proven (see Chênevert,at para. 143). Similarly, hurt feelings do not constitute an adverse effect (see Cheung,at para. 75).

112        In this case, the evidence clearly demonstrated that the employer considered each grievor on an individual basis and that on each occasion it excused the grievors, except Ms. Ebelher, from the NAMP referral process due to their individual medical or family circumstances. There is no evidence that any grievor was denied anything, let alone that any of the grievors suffered an adverse consequence in his or her employment due to a prohibited ground. Each grievor was granted a significant amount of paid leave in accordance with their requests, regardless of the fact that such absences might not have qualified for the benefit in question under the collective agreement. This was the de facto accommodation measure they requested (see Honda Canada Inc. v. Keays, 2008 SCC 39, and McLaughlin,at para. 154).

113        The foregoing is sufficient analysis on which to dismiss the grievances. However, the CHRC has raised specific allegations, which require further comment.

114        The law is clear than an employer has the right to expect that employees will attend work on a reasonable and regular basis (see Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 15, Riche, at para. 117, and Toronto (City) v. Toronto Civic Employees Union, Local 416, [2015] O.L.A.A. No. 337 at paras. 323, 325, and 328).

115        Accordingly, an employer has an inherent right to monitor and address situations of unacceptable levels of absenteeism among its employees. It may address those situations through an individualized approach or more broadly through an attendance management policy (see London (City) v. Canadian Union of Public Employees, Local 101 (2013), 234 L.A.C. (4^th) 321 at paras. 81 and 86 (“London (City) 2013”), Canadian Union of Public Employees, Local 391 v. Vancouver Public Library, [2015] B.C.C.A.A.A. No. 88 (QL) at para. 98, York University, at paras. 30 and 36, and Toronto (City), at para. 340).

116        An employee is not relieved of his or her obligation to attend work with reasonable regularity or to be immunized from the consequences for failing to meet that obligation (see Hydro-Québec, at paras. 17 to 19, York University, at paras. 34, 35, and 48, Toronto (City), at paras. 324, 327, and 328, and Vancouver Public Library, at para. 98).

117        It is well established that initially comparing an employee’s prohibited-grounds-related absenteeism to the peer norm without an adjustment for the prohibited-grounds-related absences is not adverse treatment. Excluding prohibited-grounds-related absences would leave few (if any) non-culpable absences and make the NAMP superfluous (see Coast Mountain 2010, at paras. 68 and 69, Vancouver Public Library, at paras. 107, 123, and 124, York University,at para. 44; United Food and Commercial Workers Canada Local 175 v. Cargill Value Added Meats London, [2015] O.L.A.A. No. 196 (QL) at paras. 21 and 23, and Toronto (City), at paras. 333 and 334).

118        Ms. Dufresne-Meek’s undisputed testimony was that the employer excluded both prohibited-grounds-related and culpable absenteeism from the NAMP referral process. The grievors’ testimony confirmed that the NAMP was applied that way. There is no evidence of any culpable absenteeism by any grievor. Seven of the eight grievors were never referred to the NAMP following their interviews with Ms. Shore, in light of their alleged accommodation requirements. Only Ms. Ebelher was referred to the NAMP due to her refusal to provide any meaningful information about her non-culpable absences unrelated to the prohibited grounds in fiscal year 2011-2012. She was referred to the NAMP because she provided no information that would have enabled the employer to conclude that her absences in fiscal year 2011-2012 were somehow linked to any prohibited ground.

119        An attendance management program threshold is not inherently contrary to human rights. It is appropriate for management to establish a threshold, which is used to determine when the related policy will be applied to an employee. A threshold for entry is both fundamental to the proper structuring and essential to the proper administration of an attendance management program (see Lakeridge Health Corp. v. Canadian Union of Public Employees, Local 1999, [2009] O.L.A.A. No. 681 (QL) at paras. 16 and 24, and York University, at para. 37).

120        The employer establishes the threshold on July 1 each year by taking the total number of hours of sick leave and family related responsibility leave used by all employees for an occupational group in the previous fiscal year. The average is calculated based on the number of employees in that occupation group as of March 31 of that year. There is nothing wrong with regularly reviewing the threshold for entry into the NAMP. It is an appropriate component of a properly structured and administered attendance management program (see York University, at para. 46).

121        The evidence clearly demonstrated that the employer took no automatic action simply because the NAMP threshold was triggered. Rather, the threshold was used as a method of determining when it was appropriate to review an employee’s overall attendance record and to discuss it with him or her.

122        It is trite law to state that no adverse consequence will apply to an employee who is summoned to a meeting to discuss excessive absenteeism. If anything, the NAMP reinforces and mandates the parties to meet their obligations under the CHRA. The employer was entitled to advise the grievors of its concerns about their attendance at work, to discuss possible solutions, to offer assistance and support if needed, and to inquire about any accommodation or disability issues (see Coast Mountain Bus Company Ltd., at paras. 68 and 69, Vancouver Public Library, at paras. 98, 100, 101, 107, 111, 112, and 115, Cargill Value Added Meats, at paras. 21 to 23, London (City) 2013, at paras. 119, 121, and 123 to 126, and McLaughlin, at paras. 150, 153, and 154).

123        The employer did not apply the NAMP mechanically. Discretion was exercised, the grievors’ individual circumstances were considered, as was the duty to accommodate. Documenting the meetings did not create an adverse consequence. To the contrary, the case law considers them a benefit to employees, forewarning them that their absences have reached a level that is of reasonable concern to their employer and providing the opportunity to discuss possible solutions (see Oshawa (City) v. Canadian Union of Public Employees, Local 250 (1996), 56 L.A.C. (4^th) 335 at paras. 31 and 33, and Spartech Color (Stratford), a Division of Spartech Canada Inc. v. International Association Of Machinists and Aerospace Workers, Local 103, [2008] O.L.A.A. No. 381 (QL) at para. 43).

124        There is no evidence of any adverse effect resulting from documenting the meetings or placing such documents on any file. The undisputed evidence was that Ms. Shore kept all memos (Exhibits 10, 11, 13, 14, 16, 17, and 19 to 25) in a NAMP file in her office, despite the contrary language in the NAMP. No NAMP-related documents were actually placed on any of the grievors’ personnel files.

125        The requirement to provide a doctor’s note did not create an adverse effect. Such a requirement was meant to provide Ms. Ebelher with the benefit of sick leave, which is a form of accommodation. The employer had legitimate reasons for addressing her attendance, and it was reasonable to request medical certificates, in light of her excessive absenteeism coupled with her repeated refusal to discuss it with the employer.

126        To establish a prima facie case of discrimination based on family status, a grievor must show that a family member is under his or her care and supervision, that the family obligation at issue engages his or her legal responsibility for that person (as opposed to a personal choice), that the employee has made reasonable efforts to meet those family obligations through reasonable alternative solutions that have proved not reasonably accessible, and that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of those family obligations (see Canada (Attorney General) v. Johnstone, 2014 FCA 110 at para. 93, and Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 2 at para. 177).

127        Unlike children, adults are presumed to be independent and able to provide themselves with the necessaries of life unless the circumstances establish the contrary. Those grievors who asserted obligations for family members did not identify the source of legal responsibility for those family members (see Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources and Forestry) (2015), 253 L.A.C. (4^th) 79 at para. 15).

128        The employer acknowledges that the grievors Mr. Harrison and Ms. Haldorson met the part of the test concerned with whether a grievor has a legal obligation towards a family member as set out in Johnstone at paragraph 94. Only Ms. Haldorson had a legal obligation to attend to her child during her medical treatment.

D. Grievors’ rebuttal

129        The grievors’ concern in this matter was that they should not have been subject to the NAMP. Their family statuses and disabilities got them to the point of triggering the NAMP. Admission to the NAMP was itself an adverse consequence of the employer’s discrimination. Being admitted into the NAMP was not limited to a meeting with the NAMP coordinator. There was a series of possible outcomes, including monitoring absences and potential termination.

130        Meiorin states that discrimination occurs when personal circumstances are ignored. The employer does have the right to implement an attendance management program so long as it does not discriminate against employees. The question is, can the employer include sick leave and family related leave when determining the threshold for admission into the NAMP? When putting an attendance management program in place, the employer can apply it only in such a way that it ignores personal circumstances.

IV. Reasons

131        The parties provided me with numerous cases to support their arguments, many of which were common to all three parties involved. While I have read each one, I will refer only to those of primary significance.

132        The NAMP (Exhibit 3), as described by Ms. Dufresne-Meek, purports to promote the concept that opening the door to constructive communication with employees and their supervisors about the employees’ attendance will resolve underlying causes for their absences. This is a laudable concept that promotes good labour relations in the workplace.

133        On a monthly basis, supervisors are to review leave usage reports for the last 12-month period (based on a rolling calendar and not on either a regular or fiscal calendar) to identify patterns of sick leave usage, which includes several things, such as sick leave and family related leave usage. Included in these reports is any leave used by an employee on account of a disability or chronic illness, thus violating the obligation not to mix culpable and non-culpable absences in the attendance management policy, as set out in Kirby.

134        Once the employee exceeds the threshold, and if he or she does not require accommodation, then the employee is convened to a mandatory meeting with the NAMP coordinator, the supervisor, and a union representative, if desired. The threshold in question is calculated yearly on July 1 and is the average of the total number of hours of sick leave plus the total number of hours of family related leave used by all employees for an occupational group in a fiscal year. No provision is made for distinguishing between absences due to chronic illness or due to an accident or a one-time catastrophic illness or surgery in the calculation of the threshold.

135        The employer is absolutely correct that s. 7 of the FAA grants it the authority to establish policies that govern the workplace. As I stated in Professional Institute of the Public Service of Canada,at para. 48:

[48]    The responsibilities and powers of the Treasury Board are set out in sections 7 and 11.1 of the Financial Administration Act. Section 7 and 11.1 of the FAA grant the employer broad power to set the general administrative policy for the federal public service, organize the federal public service, and determine and control the personnel management of the federal public service. Paragraph 7(1) (b) of the FAA grants the employer the exclusive authority on all matters relating to “...the organization of the federal public administration or any portion thereof, and the determination and control of establishments therein...” In exercising these functions, including contracting out services, the employer may do anything that is not specifically or by inference prohibited by statute or the collective agreement. (See for example Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at para 56; and P.S.A.C. v. Canada (Canadian Grain Commission) at page 12)....

136        The employer argued that I am without jurisdiction to interpret the NAMP as it was established under the employer’s management authority under the FAA, unless it has been expressly incorporated into the collective agreement or specifically prohibited by the collective agreement. That is a very broad statement of management rights with which I do not agree. Management does have the right as stated earlier to implement policy, but it is restricted by not only anything stated in the collective agreement but also anything that has the effect of violating provisions of the collective agreement. It is within my authority pursuant to s. 209 of the Act to determine whether the impugned policy violates the collective agreement, including the question of whether it violates the no-discrimination article of that agreement. The Board addressed this issue in Souaker v. Canadian Nuclear Safety Commission, 2009 PSLRB 145 at paras 124 to 128 (see also LaBranch v. Treasury Board (Department of Foreign Affairs and International Trade, 2010 PSLRB 65 at para 120):

124. I agree that an employee’s right to refer a grievance to adjudication must originate in the Act and not the collective agreement. In section 209 of the Act, the legislator expressly and narrowly set out the matters that can be referred to adjudication and, in principle, a grievance against a rejection on probation is not adjudicable. However, in my opinion such a conclusion is not sufficient to resolve the issue of my jurisdiction. In addition to grievances filed against measures expressly noted in paragraphs 209(1)(b), (c) and (d), the legislator also provided in paragraph 209(1)(a) that grievances involving the application or interpretation of a collective agreement are adjudicable. Mr. Souaker submitted that his termination violates article 6 of the collective agreement. Clause 6.01 reads as follows:

There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethic origin, religious affiliation, sex, sexual orientation, family status, marital status, mental or physical disability, conviction for which a pardon has been granted or membership or activity in the Institute. [Emphasis added]

That provision is clear: it provides that every employee has the right to equal treatment and to not be subject to discrimination. It imposes a corresponding duty on the employer to treat its employees equally and without discrimination. I do not see on what basis I could conclude that that clause does not grant substantive rights to employees and that it could not be used as the basis for a grievance.

125. When an employee alleges in a grievance that a decision that affects his or her conditions of employment or that involves the very survival of his or her employment relationship was motivated by discriminatory considerations and that the collective agreement specifically provides for the absence of all discrimination in the workplace, it is, in my view, a grievance that involves the application of the collective agreement within the meaning of paragraph 209(1)(a) of the Act. Therefore, an adjudicator has jurisdiction to decide on the allegation of discrimination.

126. Contrary to the employer’s claims, I find that allowing the referral to adjudication, under paragraph 209(1)(a) of the Act, of the rejection on probation of an employee who alleges that his or her termination was motivated by discriminatory considerations in violation of the collective agreement does not violate the intention of the legislator. The legislator certainly did not intend for a violation of the collective agreement to escape review by an adjudicator.

127. It is also useful to note that paragraphs 226(1)(g) and (h) of the Act expressly grant jurisdiction to an adjudicator to “... interpret and apply the Canadian Human Rights Act ...” and to “give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.”

128. Therefore, I dismiss the objection to my jurisdiction raised by the employer and find that I have jurisdiction to decide Mr. Souaker’s grievance, which was validly referred to adjudication under paragraph 209(1)(a) of the Act.

137        The grievors alleged that they were discriminated against in their employment, in violation of article 19 of the collective agreement, which incorporates those grounds identified in s. 3(1) of the CHRA as prohibited as follows:

3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

[Emphasis added]

138        Section 25 of the CHRA defines disability as any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

139        Furthermore, the grievors alleged that the employer’s NAMP violates ss. 3, 7, and 10 of the CHRA, which detail discriminatory practices as follows:

7 It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

140        Section 10 of the CHRA speaks to discriminatory policies and practices as follows:

10 It is a discriminatory practice for an employer, employee organization or employer organization

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

141        To establish that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination, which covers the allegations made and that, if the allegations are believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the employer (see O’Malley, at para. 82). The Board cannot consider the employer’s answer before determining whether a prima facie case of discrimination has been established (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22, and Taticek, at para. 102).

142        The grievor must show that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. It is not essential that this connection be an exclusive one: for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it (see Quebec (Commission des droits de la personne et des droits de la jeunesse v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at paras. 48 and 52)

143        An employer faced with a prima facie case can avoid an adverse finding by calling evidence to provide a reasonable explanation that shows its actions were in fact not discriminatory; or, by establishing a statutory defence that justifies the discrimination. If a reasonable explanation is given, it is up to the grievor to demonstrate that the explanation is merely a pretext for discrimination (see Taticek at para. 104).

144        An employer's conduct will not be considered discriminatory if it can establish that its refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is based on a BFOR (s. 15(1)(a) of the CHRA). For any practice to be considered a BFOR, it must be established that accommodating the needs of the individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost (s. 15(2) of the CHRA).

145        As I explain below, I find that the grievors have established on a prima facie basis that the NAMP systemically discriminates against persons in their classes of individuals (i.e., employees who required leave based on disability and family status).  I also find that the employer has not provided a reasonable explanation for the discriminatory practice and, in particular, has not established a BFOR to justify the NAMP as it has been applied. As a result, the grievors’ claims are substantiated.

146        It is appropriate for the employer to determine when the NAMP will be applied to any employee, and therefore, as counsel for the employer argued, a threshold for entry is both fundamental to its proper structuring and essential to its proper administration. However, how that threshold is determined may result in the NAMP being discriminatory and violating the collective agreement. In this case, the employer chose to impose a threshold calculated by averaging absenteeism including absenteeism authorized under the collective agreement and absenteeism directly attributable to the prohibited grounds of discrimination of disability and family status. Averaging that way does not take into account personal circumstances and is prima facie discriminatory (see Coast Mountain Bus Company Ltd., at para. 199, Desormeaux, at para. 46, and Grismer at para. 42). Furthermore, in all cases, the grievors were referred to the NAMP on the basis of non-culpable absences. The threshold developed by the employer is based largely on sick leave usage combined with the use of family related leave. However, it does not distinguish between the uses of sick leave related to a disability and includes time used by employees related to their family status without any provision for evaluating the threshold on a case-by-case basis.

147        The standard is reasonably necessary only if it was impossible to accommodate the needs of employees without causing the employer undue hardship. If a reasonable alternative exists to burdening members of a group with a given rule, then that rule will not be a BFOR. When developing a program such as the NAMP, the employer must consider individuals (see Meiorin, at para. 55). Individual assessments must not be unreasonably refused (see Coast Mountain Bus Company Ltd. v. Canadian Auto Workers, Local 111,[2004] B.C.C.A.A.A. No. 325(QL) at para. 199).

148        The inclusion of family related leave, which is directly linked to family status, is discriminatory. But for the fact that an employee has a particular family situation, he or she would not be entitled to use family related leave. The employer is not obligated to provide this type of leave under the collective agreement to those employees who do not first qualify for family status obligations. An employee should not be penalized for the use of such leave, which is the impact of the employer’s threshold calculation. Including family related leave in the NAMP threshold calculation accelerates the inclusion of employees claiming family status into the NAMP, with all its employment-related consequences.

149        There is a nexus between using family related leave and an employee’s family status. Consequently, the policy is discriminatory not only in its application to those employees with families and the grievors who have used family related leave but also on its face. It singles out those employees who have obtained leave that is related to their family status and subjects them to an accelerated inclusion into the NAMP, which is an adverse effect that has a direct impact on the continued employment of these employees and the grievors including the possibility of termination of that employment. In addition, the way Ms. Shore applied the NAMP at the institution singled out those employees who sought family related leave and subjected them to a process that closely resembled a disciplinary process, in which they were required to justify their leave usage, or they would suffer further negative consequences.

150        Having established that the NAMP is prima facie discriminatory because it includes the prohibited ground of family status in the calculation of the threshold for admission into the NAMP process, the employer’s arguments that it did not discriminate against the grievors because in order to claim the benefit of protection from discrimination on the basis of family status the grievor must have established a legal obligation to care for an individual are moot. But for the fact that all of the grievors, with the exception of Ms. Ebelher and Mr. Keough, had used family responsibility leave, they would not have been drawn into the NAMP.. Not only does including the prohibited ground in the calculation discriminate by adversely differentiating against those who use family related leave, but also the non-discretionary inclusion of employees who use this type of leave is a violation of the collective agreement leave and potentially the discipline provisions.

151        The employer does have the authority under clause 35.02 of the collective agreement to investigate sick leave usage by its employees and to demand that they provide medical certificates in situations in which the employer has reason to question sick leave requests. It also has the right to expect that its employees will attend work as required. However, sick leave due to a disability, whether temporary or permanent, should not be included when determining whether an employee falls within the scope of the NAMP. The employer’s own evidence was that situations of this nature would be dealt with under the accommodation policy and are not to be included under the NAMP. Any discussions of disabilities should be separate and apart from the NAMP process, and apparently, according to the employer’s evidence, it expects that to be the case.

152        The employer did not question the legitimacy of the sick leave requests for the grievors who had higher than average sick leave usage, including Ms. Ebelher, yet each was summoned to meet with Ms. Shore. With the exception Ms. Ebelher, the relevant manager or supervisor recommended against including the grievor in the NAMP. In spite of that, Ms. Shore doggedly and rigidly applied the NAMP’s provisions and ignored the recommendations of the managers and supervisors responsible for the grievors’ attendance. This lack of discretion and rigid application of the NAMP amounted to an arbitrary approach to the NAMP process that singled out those who had proven a disability, albeit in many cases a temporary one. Her rigid approach  to Ms. Ebelher’s illness resulted in Ms,. Ebelher being adversely treated by the employer.  It therefore violated article 19 of the collective agreement and was prima facie discriminatory.

153        In Ms. Ebelher’s case, there is no doubt that she suffered from a disability, which her manager knew of. She provided medical notes to justify her absences. The employer argued that because there was no medical diagnosis or professional medical evidence adduced at the hearing to support her claim that she was disabled, she was not disabled. Yet, Ms. Ebelher submitted as Exhibit 12 a note from her psychologist indicating that between May and August 2012, she had a moderate form of depression. Clearly, at the time of the meeting with Ms. Shore, Ms. Ebelher had a disability.

154        The evidence before me plainly supports the finding that Ms. Ebelher, on a prima facie basis, had at all material times, including the period during which the NAMP threshold was calculated, a disability and that absences related to her disability were factors in her being singled out for inclusion into the NAMP. In response, the employer did not establish a BFOR defence.  The employer did not prove that accommodating her needs would impose undue hardship.

155        Ms. Ebelher’s absences due to disability formed the totality of the threshold calculation used to determine if she exceeded the threshold, no matter whether it was for fiscal year 2011-2012 or 2012-2013. Ms. Shore’s testimony was very unclear as to which period of sick leave she investigated. Including sick leave related to a disability in the threshold calculation is discriminatory once it has been established that the disability exists. However, Ms. Ebelher is not without blame. She categorically refused to disclose her disability or to discuss what if anything could be done to accommodate her. The Board and its predecessors have repeatedly stated that employees are required to participate fully with the employer to determine if a disability exists and if it does what, if any, accommodation would be suitable (see Halfacree, Taticek, and Riche).

156        Given Ms. Ebelher’s refusal to participate with the employer to determine what accommodation would be suitable, the least intrusive fashion to deal with her disability was to monitor her attendance for a three-month period and to require her to provide a medical certificate for each period of sick leave. This was not onerous for her as she had been providing medical certificates to the employer all along. Monitoring Ms. Ebelher’s attendance for three months was not discriminatory; nor did the monitoring violate the collective agreement. She was discriminated against in the calculation of the threshold that brought her before Ms. Shore. Regardless of Ms. Ebelher’s failings, knowing that she had a disability, how Ms. Shore pursued ensuring Ms. Ebelher’s continued attendance at work did not fall within accepted practise when dealing with someone with a disability.

157        The employer provided no evidence to support a BFOR for how the NAMP was drafted or how Ms. Shore applied it in her role as NAMP coordinator for the institution. The rigid and arbitrary approach that she described as being mandated by the employer through its headquarters left her with no discretion, which is required in cases such as these. A legitimate business interest on its own does not constitute a BFOR without minimizing the impact of the program on employees’ human rights (see Meiorin and Coast Mountain Bus Company Ltd.).  The respondent failed to demonstrate that it could not accommodate the grievors without suffering undue hardship based on health, safety and cost.  Nor did the employer establish that it could not address its concerns over attendance in the workplace so as not to discriminate against employees with families or with disabilities. 

158        While the employer’s intention in creating the NAMP was without malice or intention to discriminate against the grievors, its application at the institutional level had a discriminatory effect. In its pursuit of a level of attendance it deemed appropriate, the employer ignored employees’ rights guaranteed in the collective agreement and in legislation. The offensive sections of the NAMP could be struck out and it could continue without discriminating against the grievors; however, the arbitrary way it was implemented at the institution created a systemic type of discrimination that cannot be remedied merely by rewriting it.

159        Contrary to the employer’s submissions and the evidence of Ms. Dufresne-Meek, I find that the institution’s NAMP coordinator took an automatic and mechanical approach to the NAMP. Ms. Shore routinely met with the grievors even though their managers had indicated that there were no questions about their leave and had recommended against them being inducted into the NAMP process despite there being no requirement if the supervisor was satisfied that the absence was justified (see Exhibit 3, the NAMP, at page 4).

160        While some case law supports the employer’s argument that meetings at levels 1 and 2 of an attendance management policy are not discriminatory (see, for instance, Coast Mountain 2010), I view this case differently. The level 1 meetings in this case were superfluous and had no purpose as each of the grievors was required to attend a meeting with the NAMP coordinator despite any recommendation to the effect that it was not required. Ms. Shore indicated in her testimony that she wanted to ensure that the managers were fulfilling their obligations under the NAMP and in so doing created a rigid and arbitrary approach to the NAMP that discriminated against the grievors.

161        Furthermore, the nature of the meetings as described by Ms. Shore, including the option of bringing a union representative, which is normally reserved for disciplinary matters, clearly indicated that the grievors’ continued employment was at risk due to the employer’s concern over their attendance. This was all documented and retained in perpetuity in Ms. Shore’s NAMP files, which she kept in her office, contrary to the NAMP, and that according to her testimony were never purged. Her arbitrary and rigid approach and the removal of any discretion at the supervisory level to prevent escalation to the NAMP level left no room for an assessment on an individual basis, regardless of the reasons for the lack of attendance. Ms. Shore might have had a legitimate managerial reason for verifying that her subordinates were meeting their obligations under the NAMP, but that reason could not be satisfied at the expense of the grievors’ collectively bargained and human rights.

162        The employer repeatedly stated that if I find that the NAMP is discriminatory, then the grievors have suffered no adverse effect as a result of its application. All the grievors were allowed the leave before being subject to the NAMP. Only Ms. Ebelher was put on an action plan of any sort. The fact that the grievors were allowed the leave they requested does not negate the existence of the discriminatory nature of the NAMP. Contrary to the employer’s arguments, the evidence has shown that some among the grievors were advised that their attendance was to be monitored for three months.

163        The Supreme Court of Canada Bombardier at para. 32, recognized as follows that adverse effects may take many forms:

[32] For more than 30 years, the Court has recognized that discrimination can take various forms, including “adverse effect” or “indirect” discrimination: Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), at p. 551. It has found that adverse effect discrimination comes within the purview of the [Quebec]Charter on the basis of the language of s. 10, which provides, inter alia: “Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing [the right to equality]” (Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 540; see also Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712). The Court has also held that discrimination can be systemic: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.

164        In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, the Supreme Court of Canada identified systemic discrimination. It is defined as practices or attitudes that whether by design or by impact have the effect of limiting an individual’s or a group’s right to opportunities because of attributed rather than actual characteristics. The focus is on whether the complainant suffered arbitrary adverse effects based on a prohibited ground, which I find the grievors did because of how the threshold for admission to the NAMP was calculated and the arbitrary way the NAMP was applied at the institution. While the employer might have intended to be neutral in its drafting of the NAMP, its implementation had the effect of systemically discriminating against the grievors.

165        Counsel for the employer’s constant referral to the approval of collectively bargained leave for the grievors served only to trivialize and marginalize the significance of the accommodation process and the employer’s obligation to accommodate an employee to the point of undue hardship. When the employer and the bargaining agent enter into a collective agreement, both are contractually obligated to abide by their obligations as identified in it. Meeting one’s contractual obligations does not amount to an accommodation. Accommodations in the human rights context are over and above any contractual obligation an employer might have.

166        The grievors have established a prima facie case of discrimination by the employer to which the employer has not established a BFOR defence. Consequently, article 19 of the collective agreement has been violated. The employer has not violated articles 35 and 43 of the collective agreement as the grievors were not denied leave under them.

167        The grievors seek damages under s. 53 of the CHRA. As a Board panel, I have the authority pursuant to s. 226(2)(b) of the PSLRA to award damages to the grievors as a result of the employer’s discriminatory practice under ss. 53(2)(e) and (3) of the CHRA, which provide as follows:

53 (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

...

(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.

 (3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

168        The grievors also sought a declaration that the employer’s NAMP is discriminatory, which will be issued. The matter of the award of damages is not so easily disposed of. It is true that as counsel for the employer has argued, the grievors were all granted the leave they requested, but those leave grants brought them within the scope of the NAMP threshold. The grievors cannot be compensated for a minor degree of pain and suffering in the same manner as someone who has not been accommodated or who has suffered some egregious form of discrimination.

169        All the grievors testified that they were upset and offended by being summoned to a meeting with Ms. Shore to review their attendance. There was no evidence of the degree of this upset. In in the absence of such evidence, I find that it was negligible and amounted to an annoyance. An award of damages must reflect the degree of pain and suffering experienced by the grievors. The range of damages for pain and suffering is specified within the CHRA as being up to $20 000 for the most serious violation of a person’s human rights. It is not appropriate to compensate the grievors with more than negligible damages, which I fix at $250 per grievor, to be paid by the employer for pain and suffering, pursuant to s. 53(2)(e) of the CHRA as each has been the victim of discrimination on either the basis of family status or disability.

170        The grievors also seek damages under the special compensation provisions of s. 53(3) of the CHRA. Damages I may award under this provision are intended to compensate someone who has been discriminated against by the employer if the employer engaged in the discriminatory practice willfully or recklessly. The employer demonstrated that it used its management rights to establish a threshold that was prima facie discriminatory to the extent that it included the prohibited ground of family status within its calculation. The inclusion of sick leave related to disability in the threshold calculation was also discriminatory. The employer promulgated a policy and encouraged its use in an arbitrary and rigid fashion and did not take into account or distinguish in its application between employees whose attendance was worthy of review and those who attendance was directly impacted by either family status or disability.

171        I have no doubt that the employer had every right to create a policy governing the workplace pursuant to s. 7 of the FAA as long as it did not violate the collective agreement or have a discriminatory effect on some of the employees to whom it was applied. The decision to include prohibited grounds in the calculation of an attendance threshold was deliberate. The NAMP repeatedly refers to sick leave patterns and the use of family related leave while no mention is made of other types of leave available under the collective agreement. Furthermore, the communication between the employer and the NAMP coordinator left her with the sense that she had no choice but to apply it with no discretion, which clearly violated the need to make the assessment of individual circumstances expected under human rights law. For these reasons, I award the sum of $500 per grievor to be paid by the employer pursuant to s. 53(3) of the CHRA in recognition of the employer’s wilful and reckless disregard of its obligations under the CHRA and article 19 of the collective agreement.

172        For all of the above reasons, the Board makes the following order:

V. Order

173        The grievance in file 566-02-8408 is allowed.

174        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

175        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

176        The grievance in file 566-02-8410 is allowed.

177        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

178        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

179        The grievance in file 566-02-8411 is allowed.

180        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

181        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

182        The grievance in file 566-02-8412 is allowed.

183        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

184        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

185        The grievance in file 566-02-8413 is allowed.

186        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

187        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

188        The grievance in file 566-02-8414 is allowed.

189        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

190        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

191        The grievance in file 566-02-8418 is allowed.

192        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

193        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

194        The grievance in file 566-02-8419 is allowed.

195        The employer shall pay the grievor the sum of $250 pursuant to s. 53(2)(e) of the CHRA within 60 days of this decision.

196        The employer shall pay the grievor the sum of $500 pursuant to s. 53(3) of the CHRA within 60 days of this decision.

197        It is declared that the employer’s NAMP violates article 19 of the collective agreement in so far as it discriminates on the basis of the prohibited grounds of family status and disability.

August 9, 2016.