Date:  20190712

Files:  566-02-11028, 11029,

and 11031 to 11033

 Citation:  2019 FPSLREB 71

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

Steven Eady, Ben Falk, William Higdon, Leslie Holland, and Bruce Tenhoeve

Grievors

and

TREASURY BOARD

(Correctional Service of Canada)

Employer

Indexed as

Eady v. Treasury Board (Correctional Service of Canada)

In the matter of individual grievances referred to adjudication

Before:  James R. Knopp, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievors:  Abudi Awaysheh

For the Employer:  Nour Rashid, counsel

Heard at Vancouver, British Columbia,

May 8 and 9, 2019.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1]  Steven Eady, Ben Falk, William Higdon, Leslie Holland, and Bruce Tenhoeve (“the grievors”), at the time of the events giving rise to these grievances, were all employees holding either a GS or a GL classification with the Correctional Service of Canada (CSC or “the employer”). They were employed under the terms of the Operational Services Group collective agreement between the Treasury Board and the Public Service Alliance of Canada that expired on August 4, 2014 (“the collective agreement”).

[2]  Clause 19.01 of the collective agreement is the “no discrimination” clause. It states as follows:

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

[3]  Each grievor suffered a serious illness or debilitating injury before fiscal year 2013-2014, the effect of which was to necessitate significant periods of certified and uncertified sick leave throughout this period. Each grievor was under a physician’s care (and, in some cases, the care of one or more specialists), and a series of doctor’s notes was provided for each grievor, which satisfied the employer’s requirements for certified sick leave.

[4]  The five grievors were under the supervision of two managers, Brian Mosby and Justin Laynes, both of whom were well aware of the medical reasons behind the grievors’ absences from work. Both made efforts to accommodate the grievors’ disabilities, when necessary, while they were at work.

[5]  Although neither supervisor had any issue whatsoever with the periods of sick leave, by management’s interpretation of a policy known as the National Attendance Management Program (NAMP), they were required to meet with each grievor and to place a memo on his leave file about the absences.

[6]  The grievors were offended by the meeting and the memo. They understood the purpose of the NAMP was to address chronic illegitimate absenteeism, which did not apply to them.

[7]  The meeting and memo made each grievor feel humiliated and undervalued because each of them had made significant efforts to minimize the impact of his illness or injury on the workplace by undergoing the necessary treatment, which in some cases was quite painful. They continued to come to work when they could, even though they were still in pain, because of their devotion and strong work ethic.

[8]  Each grievor grieved the employer’s decision to meet and to place a memo on file. Their grievances were denied at every level, but after the second-level grievance hearing, the employer agreed to grant their request to remove the memos from their files and destroy them. None of the grievors testified to a tangible or quantifiable adverse effect to his career as a result of the interview or the memo.

[9]  The grievors feel that the employer’s actions amounted to discrimination on the basis of disability, contrary to clause 19.01 of the collective agreement and to the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA).

[10]  For the reasons that follow, the grievances are denied. The attendance management tools under the NAMP were never applied. The meetings and memos simply acknowledged that the leave threshold had been exceeded due to certified sick leave. The hurt feelings due to the meetings and memos do not constitute a tangible adverse effect, which is an essential element of discrimination.  I find, therefore, that discrimination did not occur. There was no violation of clause 19.01 of the collective agreement.

II. Documentary evidence

[11]  The parties submitted a comprehensive agreed statement of facts consisting of 4 pages and 17 paragraphs, as well as a joint book of documents (with 10 tabs) at the outset of the hearing. The agreed statement of facts reads, in part, as follows:

1. A Joint Book of Documents of 10 tabs is jointly submitted on consent of the parties. The parties agree as to the authenticity of these documents but make no representations as to the truth of their content.

2. The parties agree that further documentation may be entered by the parties, separately, as exhibits according to the Board’s usual practice.

3. The Collective Agreement between the Treasury Board and the Public Service Alliance of Canada in force at the time the grievances were filed was the Operational Services Collective Agreement, Expiry August 4, 2014.

4. Article 19 of the Collective Agreement concerns discrimination at the workplace. Article 19.01 reads:

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

5. On April 15, 2015, the Public Service Alliance of Canada referred the grievances of Steven Eady, Ben Falk, William Higdon, Leslie Holland, and Bruce Tenhoeve (the “grievors”) to adjudication and provided notice to the Canadian Human Rights Commission (CHRC).

6. On January 23, 2017 the Canadian Human Rights Commission informed the parties that they will not be making submissions in these matters.

7. The employer uses an attendance program known as the National Attendance Management Program (NAMP). The annual leave threshold pursuant to NAMP for the SV group, is 146.4 hours.

8. The Human Resources Management System (HRMS), for the 2013-2014 fiscal year, which covers the period from April 1, 2013 to March 31, 2014, provides the dates the grievors were on leave.

9. On or around April 4, 8, 9^th or 10^th, 2014, each of the grievors was separately called into a meeting with their supervisors to discuss their leave use, as they their leave usage for the 2013-2014 fiscal year was above 146.4 hours. During the meeting, a memo was placed in the files for each of the grievors. The grievors were provided a copy of their memos.

10. The Memo for Steven Eady stated that he used 561 hours of leave, of which 528 hours were certified sick leave by a physician. The Memo for Ben Falk stated he used 172.5 hours of sick leave, of which 112 hours were certified sick leave by a physician. The Memo for William Higdon stated he used 147 hours of sick leave, of which 79 hours were certified sick leave by a physician. The Memo for Leslie Holland stated he used 170.5 hours of leave, of which 32 hours were certified sick leave by a physician. The Memo for Bruce Tenhoeve stated he used 230 hours of leave, of which 104 hours were certified sick leave by a physician.

11. The Memos confirmed that the grievors were not being referred to the NAMP coordinator, and that a meeting was held with the employees to express what their total leave hours were to date for the year

12. On or around April 15, 2014, as a result of having been called into a meeting on April 4, 8, 9^th or 10^th, 2014, and having a memo placed on their file, each of the grievors filed a grievance with almost identical wording against the employer.

13. On or around May 5, 2014 the employer provided first level responses dismissing the grievances. On or around June 6, 2014 the employer partially granted the grievance by removing the memo to file in the grievors’ files and dismissed the remaining allegations. On or around March 11, 2015, the employer provided their final level reply, which like their second level reply, dismissed the remaining allegations.

14. A second level grievance hearing for each of the grievors was held on or around May 25, 2014. Each of the grievors provided a statement concerning the employer’s NAMP policy. Les Holland and William Higdon provided additional statements concerning the employer’s NAMP policy.

15. On May 7, 2014, Assistant Warden, Management Services, Samantha Cater emails Warden Terry Hacket requesting that the memo to file placed in each of the grievor’s file be removed, and Warden Hackett agrees to their removal.

16. Shortly thereafter, the memos were removed from the grievors’ files and shredded. The employees were notified of this.

17. On December 17, 2014, Ms. Marion Fitzgerald-Stuart, a Labour Relations Officer for the Union of Solicitor General Employees met with the employer at the third level, and provided them with her Level 3 Grievance presentation.

[Sic throughout]

III. Testimony of Witnesses

A. Bruce Tenhoeve

[12]  Mr. Tenhoeve is a carpenter with considerable experience in the public service. He currently holds a supervisory position as a facilities manager with the CSC.

[13]  In December of 2013, Mr. Tenhoeve was diagnosed with a shoulder injury, the severity of which was not revealed until he underwent magnetic resonance imaging (MRI) tests. The injury was serious enough to warrant a considerable period of absence from work.

[14]  After Mr. Tenhoeve returned to work on April 8, 2014, he was summoned by his manager, Mr. Mosby, to a meeting in which Mr. Tenhoeve was given a memorandum reading as follows:

MEMO to file – National Attendance Management Program.

In regards to the National Attendance Management Program (NAMP), this memo to file is to express that the reason or the employee’s leave usage being 230 hours, which is over the threshold of 146.4 hours, from April 01, 2013 to March 31, 2014 is that the employee has used 104 hours of certified sick leave in fiscal 2013-2014 that was supported by a Physician’s note. Mr. TenHoeve had a number of medical issues that required he be absent from work under a Physicians direction.

If certified sick leave was not required, the employee would have had leave usage of 126 hours over fiscal year 2013-2014. The annual threshold for his occupational group is 146.4 hours, so uncertified sick is well under the threshold.

Based on the items listed in this memo, no referral is being made at this time to the site NAMP Coordinator. However, a meeting was held with the employee to express what his total leave hours are to date for this year.

[Sic throughout]

[Emphasis in the original]

[15]  The meeting was extremely brief and consisted of Mr. Mosby advising Mr. Tenhoeve that a copy of this memo was to be placed on his leave file, purely for informational purposes. Mr. Tenhoeve felt that Mr. Mosby was as polite as he could be under the circumstances and that he had merely carried out an order to hold the meeting. Nonetheless, Mr. Tenhoeve felt insulted by the interaction.

[16]  He understood that the NAMP was a mechanism to deal with illegitimate absences from work, and he felt as though he was being accused of trying to cheat the system. When the NAMP was being rolled out, he recalled an information session about it held by way of videoconference. The resounding message from this teleconference, according to Mr. Tenhoeve, was that the NAMP was designed to target those employees who abuse sick leave and family leave.

[17]  Mr. Tenhoeve described how certain unscrupulous employees would call in sick to avoid certain undesirable shifts, to avoid going to work after a payday, or to dodge a shift on Friday before a long weekend, for example. If this became a pattern of activity over time, the NAMP was available to provide an action plan for managers, to curb the abuse and ensure the employee’s attendance at work.

[18]  Mr. Tenhoeve testified that none of this pertained to him, and that he was “made to feel like dirt” as a result of the meeting.

[19]  He testified to a strong work ethic, which kept him coming to work even though he was still in pain from his injury. He said that he is “not the type of person to take a day off because of a hangnail”. He was angered that his employer showed no respect for the hours he put in while he was in pain and not functioning at 100%.

[20]  Mr. Tenhoeve testified to lingering ill feelings over the meeting and the placement of the memo on his file, even though he knew that the memo had been removed and destroyed.

B. Steven Eady

[21]  Mr. Eady has had an extensive career with the public service, starting in 1977. He applied for and received medical retirement in 2018.

[22]  Mr. Eady was diagnosed with cancer in 2012, and his absences from work were due to chemotherapy. Mr. Mosby and other managers and supervisors in the workplace were never concerned about the reason for Mr. Eady’s absences.

[23]  On April 9, 2014, Mr. Mosby summoned Mr. Eady for a very brief meeting, at which the same boilerplate memo was issued, as follows, along with a notice that it would be added to his leave file:

MEMO to file – National Attendance Management Program.

In regards to the National Attendance Management Program (NAMP), this memo to file is to express that the reason or [sic] the employee’s leave usage being 561 hours, which is over the threshold of 146.4 hours, from April 01, 2013 to March 31, 2014 is that the employee has used 528 hours of certified sick leave in fiscal 2013-2014 that was supported by a Physician’s note. Mr. Eady was on Disability from July 2014 to February 2015.

If certified sick leave was not required, the employee would have had leave usage of 11 hours over fiscal year 2013-2014. The annual threshold for his occupational group is 146.4 hours, so uncertified sick [sic] is well under the threshold.

Based on the items listed in this memo, no referral is being made at this time to the site NAMP Coordinator. However, a meeting was held with the employee to express what his total leave hours are to date for this year.

[Emphasis in the original]

[24]  Mr. Eady knew the NAMP was geared to those employees who were suspected of abusing leave entitlements. He felt as though he should never have been called into that meeting because he had not done anything that the NAMP was designed to address. He testified, “everyone knew I had cancer, and that’s why I was off work.”

[25]  He expressed frustration at having been diligent with his use of sick leave over his public service career and at receiving no appreciation for it. Instead, he felt singled out because of his disability.

[26]  Although he found Mr. Mosby respectful in his tone, Mr. Eady felt as though his strong work ethic was being questioned.

C. Ben Falk

[27]  Mr. Falk testified to a lengthy career in the CSC as a general labourer.

[28]  Although he joked about his attempt to “recapture the glory of youth”, the truth of the matter is that he suffered a very serious shoulder injury as a result of a bike accident, which necessitated a significant period of recovery. He was absent from work a good deal, but he was in constant communication with his manager, and he supplied the necessary medical certificates to justify his absences.

[29]  Mr. Falk was called into a similar meeting with Mr. Mosby. His memo reads as follows:

MEMO to file – National Attendance Management Program.

In regards to the National Attendance Management Program (NAMP), this memo to file is to express that the reason or the employee’s leave usage being 172.5 hours, which is over the threshold of 146.4 hours, from April 01, 2013 to March 31, 2014 is that the employee has used 112 hours of certified sick leave in fiscal 2013-2014 that was supported by a Physician’s note. Mr. Falk required injured his shoulder and could not work and this resulted in a higher than normal use of certified sick leave.

If certified sick leave was not required, the employee would have had leave usage of 60.5 hours over fiscal year 2013-2014. The annual threshold for his occupational group is 146.4 hours, so uncertified sick is well under the threshold.

Based on the items listed in this memo, no referral is being made at this time to the site NAMP Coordinator. However, a meeting was held with the employee to express what his total leave hours are to date for this year.

[Sic throughout]

[Emphasis in the original]

[30]  Mr. Falk was not aware of the NAMP until the meeting with Mr. Mosby but did not appreciate being made to feel as though he had shirked his duty by not being at work. His absences had been certified by medical certificates, and his employer was aware all along of the reason for them. He felt humiliated and embarrassed. He testified as follows: “I felt my integrity was being put on the line. That hurt deeply.”

[31]  Mr. Falk testified to being so upset by the meeting that he did not feel like going back to work. He credits his wife with talking him out of quitting.

D. Leslie Holland

[32]  Mr. Holland has also had a lengthy career with the CSC and has occupied several different positions, including 12 years on the health and safety committee. He was also the president of the bargaining agent for 12 years. He received a medal for service with the CSC.

[33]  Mr. Holland was obliged to step down for medical reasons. To make matters worse, after a very serious period of illness and partial recovery from nerve damage, he was diagnosed with cancer.  He spent many months in chemotherapy treatments.

[34]  Until the meeting with Mr. Laynes on April 10, 2014, no representative of management had ever expressed any type of concern over Mr. Holland’s leave usage. Everyone understood he was absent for a medically certified reason. When he was at work, Mr. Holland found his manager particularly accommodating in the workplace, to the point of helping him fasten the buttons on his sleeve when he was physically unable to do it himself.

[35]  Given the compassionate treatment he had been experiencing in the workplace, Mr. Holland was particularly upset to be called in to a meeting about his absences. His memo reads as follows:

MEMO to file – National Attendance Management Program.

In regards to the National Attendance Management Program (NAMP), this memo to file is to express that the reason or the employee’s leave usage being 170.5 hours, which is over the threshold of 146.4 hours, from April 01, 2013 to March 31, 2014 is that the employee has used 32 hours of certified sick leave in fiscal 2013-2014 that was supported by a Physician’s note. Mr. les Holland had a medical issue that required him to be absent from work under a Physicians direction.

If certified sick leave was not required, the employee would have had leave usage of 138.5 hours over fiscal year 2013-2014. The annual threshold for his occupational group is 146.4 hours, so uncertified sick is under the threshold.

Based on the items listed in this memo, no referral is being made at this time to the site NAMP Coordinator. However, a meeting was held with the employee to express what his total leave hours are to date for this year.

[Sic throughout]

[Emphasis in the original]

[36]  Mr. Holland testified to feeling bullied by the meeting and the memo. He did not abuse his sick leave. He felt particularly insulted by the line in the memo that reads, “no referral is being made at this time to the site NAMP Coordinator” [emphasis added]. The words “at this time” felt like a thinly veiled threat that special attention might be paid to his leave usage in the future.

[37]  Mr. Holland holds no grudge against Mr. Laynes, as he felt Mr. Laynes was just doing what he was told. He feels that this incident ruined his relationship with the CSC.

E. William Higdon

[38]  Mr. Higdon is a veteran of the Canadian Armed Forces with a Canadian peacekeeping mission to his credit. He is a recipient of the Queen’s Jubilee medal and has received a Governor General’s award for volunteerism. He has been a lifetime member of the Royal Canadian Legion and is currently the deputy zone commander.

[39]  Mr. Higdon started in 2002 with the CSC and is currently employed at the Pacific Institution. He was injured on the job; he was struck in the knee by a door, which had been stuck and had to be forcibly opened. His supervisor, Mr. Laynes, was very much aware of the medical reason for his absences from work and had no issues with it whatsoever.

[40]  Mr. Higdon testified to feeling degraded by the April 10, 2014, meeting with Mr. Laynes, during which he learned that a copy of the following memo was to be placed on his file:

MEMO to file – National Attendance Management Program.

In regards to the National Attendance Management Program (NAMP), this memo to file is to express that the reason or the employee’s leave usage being 147 hours, which is over the threshold of 146.4 hours, from April 01, 2013 to March 31, 2014 is that the employee has used 79 hours of certified sick leave in fiscal 2013-2014 that was supported by a Physician’s note. Mr. Bill Higdon had a number of medical issues that required he be absent from work under a Physicians direction.

If certified sick leave was not required, the employee would have had leave usage of 68 hours over fiscal year 2013-2014. The annual threshold for his occupational group is 146.4 hours, so uncertified sick is well under the threshold.

Based on the items listed in this memo, no referral is being made at this time to the site NAMP Coordinator. However, a meeting was held with the employee to express what his total leave hours are to date for this year.

[Sic throughout]

[Emphasis in the original]

[41]  Mr. Higdon testified to his blood pressure “going through the roof” when he was called in by Mr. Laynes and read the memo. Drawing attention to leave usage in this manner, when it was entirely justified and certified by doctor’s notes, was a slap in the face.

[42]  Like Mr. Falk, Mr. Higdon felt like quitting the public service altogether over this incident because of the way it hurt him. Again, like Mr. Falk, Mr. Higdon credits his wife with talking him out of quitting. Mr. Higdon testified to still feeling the effects of this insult many years later.

F. Common ground for each of the five grievors

[43]  Each grievor confirmed that he was never referred to or contacted by the NAMP coordinator. Each also confirmed that the meeting was not an “interview”, in that not much back-and-forth dialogue took place. The meetings were uniformly brief and consisted mainly of the manager either reading the memo out loud or referring to its salient points and explaining that a copy of it would be placed on each grievor’s leave file.

[44]  Each of the grievors was questioned as to whether he had experienced any direct negative effect from the presence of his memo, such as disciplinary action or the threat of it, a denial of leave requests, or the hindrance of a promotional opportunity. Each responded in the same way, stating that no negative effect of such kind had been experienced. Rather, the psychological impact of the lack of respect shown by management and the accusatory nature of the NAMP formed the basis for their grievances. The only reason each had been singled out for a meeting was that he had been unable to attend work due to an illness certified by doctors’ notes. Each felt strongly that this amounted to discrimination on the basis of disability.

[45]  Each grievor voiced displeasure at having been called in to a meeting and at the presence of the memo on his file. They all filed grievances to this effect. They all acknowledged that at Samantha Cater’s direction, after each grievance was denied at the second level, the memos were removed from their files and shredded. All the grievors testified that this did not make a difference to them as the meetings should never have taken place, and the memos should never have been filed in the first place.

G. Samantha Cater

[46]  Ms. Cater has had a lengthy and successful career in the CSC and is currently the Assistant Warden, Management Services, for Pacific Institution. Mr. Mosby and Mr. Laynes are two of her many direct reports.

[47]  Among Ms. Cater’s many duties is administering the NAMP. She agrees with the sentiment expressed by many of the grievors that a common perception of the NAMP is that it was designed specifically to target delinquency or the abuse of leave privileges, but she maintains that this perception is largely unfounded, because larger issues of human resource management are at play. One of the NAMP’s goals is to improve the lines of active communication between employees and supervisors over leave usage. It is really nothing more than a management tool.

[48]  However, to be useful as a management tool, the NAMP must be consistently and accurately applied, part of which entails adhering to reporting standards. Ms. Cater requires monthly reporting from her managers, including Mr. Laynes and Mr. Mosby, as per section 6.1 of the NAMP, which states, “On a monthly basis, supervisors must monitor and review leave usage of their employees.”

[49]  Later on in that same section, the NAMP states, “If there appears to be attendance irregularities, and/or the employee is approaching the leave threshold, the supervisor will initiate an interview to explore the reasons behind the absences during the last 12 months.”

[50]  Ms. Cater testified that the interview was an opportunity to explore, among other things, whether certain accommodation measures might be useful, depending upon the unique medical circumstances of each grievor affected by the NAMP.

[51]  The term “leave threshold”, as used in the NAMP, is described in Annex A, and for added clarity, it provides a numerical example to demonstrate how the threshold is calculated. Since the leave threshold forms an essential element of the memos, I will reproduce Annex A in its entirety. A footnote to the annex reads as follows:

Includes only indeterminate employees who are active or on paid leave. All term, casual, and “seconded in” employees have been excluded. Absences due to outstanding WCB decisions or absences while participating on return-to-work programs, under worker’s compensation legislation, are not included.

[52]  Annex A reads as follows:

Annex A – Establishment of Leave Usage Thresholds

The placement of an employee on an attendance management program is justified when the employer is able to establish that the employee’s absenteeism is excessive. The peer group average provides the employer with a level by which it can determine whether an employee’s level of absenteeism is excessive. The peer group average is referred to as the “threshold”.

The threshold is established yearly, on July 1^st, 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. This total is divided by the number of employees in the occupational group on March 31^st.

Assuming that 10 “X” Group employees used the following hours of Sick Leave and Family Related Responsibility in a fiscal year:

Total usage of Sick Leave:	1,000 hrs
Total usage of Family Related Responsibility Leave:	300 hrs
Total usage of leave:	1,300 hrs
The total usage of leave in hours (1,300) is then divided by the total number of employees (10) as follows: 1,300 hours / 10 employees = 130 hours / employee.

If the employee is absent for more than 130 hours, the threshold has been exceeded.

[53]  All five grievors form part of the same occupational group. The average sick leave and family related responsibility leave usage for their group for the fiscal year in question was 146.4 hours. Each grievor’s memo refers to 146.4 hours as the leave threshold.

[54]  Ms. Cater was questioned about the degree of discretion available to managers when the threshold has been crossed. She responded that the NAMP is clear in that an interview must be conducted if the leave threshold is crossed. She directed Mr. Laynes and Mr. Mosby to prepare the memos, to hold the meetings with the grievors, and to place the memos on the grievors’ files, which they did.

[55]  With respect to this last point, Ms. Cater was also clear that the memos were deliberately not placed on the grievors’ permanent personnel files because they were intended only to form part of an informal working file that every supervisor keeps for every employee to track leave usage. This was referred to throughout the hearing as the “leave file” so as to clearly distinguish it from the “personnel file”.

[56]  The rationale for creating a hard-copy record in the form of the memo was that should someone other than Mr. Laynes or Mr. Mosby be required to step into a supervisory role (in particular, someone who may not know about the medical issues underlying the above-average leave usage), no additional investigation or meeting would be needed. The memo would be self-explanatory, and there would be no need to bother the employee with another meeting.

[57]  Ms. Cater testified that in this sense, the presence of the memo was of benefit to the grievors because it eliminated the need for any ongoing inquiry into their absences. According to her, this was another example of the NAMP’s effectiveness as a management tool.

[58]  In responding to concerns that the presence of such a memo could negatively influence career advancement, Ms. Cater emphasized that such decisions are never made by referring to the leave file but always to the personnel file. The memos were never destined for the grievors’ personnel files. They remained on the grievors’ leave files for only a matter of weeks before they were removed and destroyed at the grievors’ request.

[59]  Ms. Cater was surprised to learn of the grievors’ immediate dissatisfaction with the interviews and the memos. She made further inquiries through her managers and learned of their displeasure to a greater extent. She did not know each grievor personally at the time but has since come to learn of their dependability, strong work ethic, and commitment to the public service in general and to the CSC in particular. In her testimony, she referred to them collectively as very valuable employees, and she took their concerns seriously.

[60]  As a result of what she learned, on May 7, 2014, she prepared the following email to the Warden of Pacific Institution:

...

As you are aware, my managers in Corporate Services at PI have been following the steps of the NAMP, and this is a program that I have monitored quarterly for my division since it was implemented (I can’t speak for the time that I was on leave). This has recently resulted in letters being put to leave files for 6 employees in Corporate Services at PI. All of these employees have exceeded thresholds for a variety of reasons, with all having been on long term leave or certified leave for health reasons of which their managers were aware of [sic].

The NAMP requires the managers to put these letters to the leave file to document that they are aware of the reasons for the leave usage, that there is no abuse of leave, and to confirm whether the employee requires accommodation or not related to the cause of their leave usage. While these letters are meant to protect the employees and ensure that subsequent managers are aware of any legitimate health issues and/or accommodation requirements, my employees feel that these letters are disrespectful, de-motivating and a slap in the face.

Further, it appears that my division at PI may be the only division following the letter of the program.

I am sincerely distraught at the impact that this program has had on a group of employees that are extremely hard working, loyal, and who I value greatly...although the employees at this point in time do not feel valued at all. I believe that the cost associated with following the program greatly outweighs any benefit that may have corporately been intended by the process for staff who are not abusing leave.

As such, I would like your permission to withdraw all six letters from the files of my employees immediately.

...

[61]  Ms. Cater received the Warden’s permission and immediately took steps to retrieve the letters in question from the leave files and have them shredded. All the grievors were immediately notified of this course of action.

[62]  Neither Mr. Laynes nor Mr. Mosby testified. It was common ground between the parties that both supervisors were well aware of the medical reasons underlying all the grievors’ absences and that they treated each grievor politely and respectfully in the meetings.

IV. Arguments of the grievors

[63]  The Supreme Court of Canada’s case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30, contains the three-part test for a prima facie test of discrimination. To paraphrase, the Supreme Court noted that this test requires three things: first, that the complainants show that they have a characteristic protected from discrimination under the applicable human rights statute; second, that they demonstrate an adverse impact; and third, that they establish that the protected characteristic was a factor in the adverse impact. The grievors argue that they have met this three-part test by way of the evidence produced at this hearing.

[64]  The characteristic protected from discrimination is their disability.  The adverse impact is amply demonstrated by the deeply felt humiliation at being subjected to an interview about excessive leave usage and at having a memo to that effect placed on file.  Disability was not only a factor in the adverse impact, it was the only reason management took the action it did. Therefore, argue the grievors, the three-part test has been met.

[65]  The grievors rely upon the finding in Bodnar v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 71, which states that the employer’s application of the NAMP was discriminatory. The circumstances of the grievors in this case is virtually identical to the circumstances described in Bodnar, in which damages in the amount of $250.00 were awarded pursuant to s. 53(2)(e) of the CHRA. 

[66]  Counsel for the grievors emphasized that although each grievor in this hearing is seeking considerably more than $250.00, each of them made a point of testifying that they were motivated by principle rather than by monetary award. 

[67]  The Bodnar matter went before the Federal Court of Appeal, where it was overturned in part because of a lack of evidence of an adverse effect from the discriminatory practice. The grievors argue that this was an important distinction between Bodnar and the present case. They claim that the oral testimony of each of them provided ample evidence of the adverse effects of applying the NAMP.

[68]  In the case of Bell Canada v. Unifor, Local 6007, 2019 CanLII 6150 (CA LA), the use of an attendance management policy was found to be discriminatory and contrary to the CHRA when it was applied mechanically and without discretion. It states in part as follows at paragraph 81:

81 ... [I]t is inappropriate, and an unreasonable exercise of management rights to mechanically require every employee to produce medical certificates for all future absences simply because s/he has crossed a particular threshold of absenteeism, without addressing the circumstances peculiar to the employee. Indeed, demanding that any employee whose absence the employer does not suspect is not for legitimate non-culpable reasons for all future absences is unreasonable and unfair – although requiring periodic updates may be acceptable in the case of a chronic medical condition which results in intermittent, perhaps not foreseeable, absences from work....

[Emphasis in the original]

[69]  The grievors draw particular attention to the last sentence of the above paragraph, which reads: “The [attendance management program] must provide for discretion, and that discretion must be exercised - reasonably.”

[70]  The grievors submit that the NAMP allows for discretionary application but that rather than reasonably exercising its discretion, management decided to call each grievor in for a meeting and advise him that his leave usage had exceeded the leave threshold and that therefore, a memo would be place on his file.

[71]  Particular attention must be paid to the sentence on page 6 of the NAMP, which provides, “The NAMP is not intended to limit a supervisor/manager’s discretion to use these measures in managing their employees. Supervisors/managers retain the discretion to use these tools at all times.”

[72]  In summary, management had the discretion to determine whether a meeting should be called. The NAMP quite clearly states that such a meeting is necessary only if there is a concern with attendance. In this case, there was no concern. The grievors were singled out because of their disabilities. Therefore, the exercise of discretion was unreasonable and resulted in a discriminatory practice with a significant adverse effect upon each grievor.

V. Arguments of the employer

[73]  The employer distinguished the Bell Canada decision from the present matter because Bell Canada involved a policy grievance, not individual grievances. In addition, the attendance management program in Bell Canada is not the same as the NAMP that is the subject of this hearing.

[74]  The reference to the discretionary use of certain attendance management tools is inappropriate, argued the employer. By referring to section 6.2 and later sections of the NAMP, the grievors entered territory that does not apply to them. Once a matter has been referred to the NAMP coordinator, a set of tools is available to encourage attendance, the use of which is indeed discretionary. However, in the present case, none of the grievors was referred to the NAMP coordinator.

[75]  In her testimony, Ms. Cater made it clear that the interviews and the memos were never intended to be punitive and were not discriminatory. Rather, they simply satisfied a policy requirement. She was careful to stress the good management practice inherent in holding such a meeting because it provides an opportunity for face-to-face contact and open communication. This is especially important for those employees who have been absent for medical reasons because the meeting provides an opportunity to address any accommodation issues, which could make life easier at work.

[76]  In particular, the employer argues that there is an absence of adverse effect within the definition set out by the case law. “Adverse” is an adjective; in its ordinary meaning, it means something harmful.

[77]  The present case is similar to the case of Cheung v. Treasury Board (Correctional Service of Canada), 2014 PSLREB 1, in which a male prison guard argued discrimination in the application of a prison policy requiring male prison guards to walk behind female prison guards when carrying out night-time checks on female inmates. At paragraph 65 of Cheung, the adjudicator stated as follows:

65 The grievor has not established how this direction on completing the duties regularly assigned to correctional officers, both male and female, has a clear and significant harmful effect on his employment opportunities and not merely an incidental or minimal impact on these opportunities. Furthermore, he has not established that the employer’s policy in any way impugns his abilities as a male officer to fulfill the obligations of his job....

[78]  Counsel for the employer distinguished Bodnar on the extent to which the NAMP was applied. In Bodnar, each grievor was not only brought into a meeting and issued a memo but also was referred to the NAMP coordinator, which was not done in the present case. In this case, the attendance review stopped at the initial inquiry phase for all grievors.

[79]  Feeling upset about an attendance management program is insufficient. At paragraph 75 of Cheung, the adjudicator in part stated as follows:

75 I therefore find that the grievor has failed to establish a prima facie case of discrimination. As argued by counsel for the employer, simple hurt feelings do not constitute an affront to one’s dignity sufficient to establish a prima facie case of discrimination....

[80]  In London (City) v. Canadian Union of Public Employees, Local 101 (2013), 234 L.A.C. (4^th) 321 at para. 81, the arbitrator found that “[t]he fact that employees may be uncomfortable or troubled by discussions, pertaining to their absenteeism, is, however, not a sufficient reason to suggest that a proper attendance management policy should be viewed as unreasonable.”

[81]  The grievors can only describe their hurt feelings subjectively. Objectively measured, there was no adverse effect upon them. By their own admission, the meetings and the memos had no bearing on whether further leave (certified or uncertified) would be approved. Nor were promotional opportunities affected; nor did any disciplinary measures result. Importantly, none of the grievors was attendance-managed in any way, and not one was referred to the NAMP coordinator for any type of follow-up.

[82]  There is no adverse impact to an employee with a CHRA-protected characteristic in calling meetings to discuss attendance. Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW Canada) Local 111, 2010 BCCA 447 (“Coast Mountain”), states as follows at paragraph 69:

[69] ... I also agree with the judge’s comment in para. 95 of his reasons that placement of an employee into Level 1 of the Program is not a sufficient basis for a finding of systemic discrimination. This is because an employee does not receive any adverse treatment at Level 1; its purpose is simply to make the employee aware of the Employer’s concerns regarding his or her attendance record....

[83]  Similarly, Canadian Union of Public Employees, Local 391 v. Vancouver Public Library, [2015] B.C.C.A.A.A. No. 88 (QL), states as follows at paragraphs 111 and 112:

111 It was acknowledged in HEABC, supra that an employer is entitled to engage in corrective actions such as counselling to address non-culpable absenteeism as long as that action is non-punitive. In Coast Mountain, supra the Court of Appeal stressed that placement in the initial stages or levels of that AMP did not constitute discrimination since there was no adverse treatment or punitive repercussions at the first two Levels.

112 In my opinion the same conclusion can be reached concerning the entry of the grievor in the AMP and his involvement at the Informal meetings on October 29, 2012, April 1, 2013, and June 25, 2013. The Library was entitled to advise the grievor of its concerns about his attendance at work, to discuss possible solutions, to offer assistance and support if needed and to inquire if there were any accommodation or disability issues: see Coast Mountain, supra, para. 69. This was essentially what took place at the Informal meetings which I am satisfied were conducted with a gentle tone and the use of soft language. I accept that the grievor felt bad in a general sense about having to participate in the AMP. However, there was nothing about those three meetings concerning a topic the Employer was entitled to raise and make inquiries about that could be considered punitive or adverse treatment of the grievor that constituted discrimination.

[84]  Finally, Klonowski v. Ontario (Ministry of Community Safety and Correctional Services), [2012] O.H.R.T.D. No. 1538 (QL), states as follows at paragraph 29:

29 I do agree with the applicant that there was a mechanical application of a standard to her circumstances. While the applicant argues that this establishes disadvantage, I find that there is no reasonable prospect that the applicant can establish that this is the case. The respondents’ approach to treat all absences the same may be incorrect given that an employer has an obligation to accommodate a person with a disability, but I have difficulty seeing how the mechanical application impacted on the applicant in any objective way given what transpired – a single non disciplinary meeting.

[85]  The employer argues that only “hurtful, harmful, or hostile” consequences should be protected under human rights legislation. The term “adverse differentiation” was examined in the case of Tahmourpour v. Canada (Royal Canadian Mounted Police), 2009 FC 1009.

[86]  Mr. Tahmourpour, a cadet in training with the Royal Canadian Mounted Police, requested permission to wear a religious pendant during physical training class, which was apparently not normally permitted, but was allowed in his case. In class, the instructor drew the attention of the rest of the troop to the pendant, and Mr. Tahmourpour made a human rights claim of discrimination on the basis of religion. The Federal Court stated as follows at paragraph 44:

[44] What is the meaning of “adverse differentiation”? “Differentiation” is a noun that in its ordinary meaning means a distinction between things. “Adverse” is an adjective that in its ordinary meaning means harmful, hurtful or hostile. In my view, “adverse differentiation” means a distinction between persons or groups of persons that is harmful or hurtful to a person or a group of persons. It can also, in my view, mean a distinction that is made or indicated in a hostile manner, where it is the manner of its making that harms or hurts. If it is to be an adverse differentiation that is prohibited by human rights legislation, the distinction must be based on or made because of one of the prohibited grounds set out in the legislation.

[87]  The Federal Court of Appeal considered these circumstances in Tahmourpour v. Canada (Royal Canadian Mounted Police), 2010 FCA 192. At paragraph 12, it wrote as follows:

[12] The immediate result of Sergeant Hébert’s announcement at the first physical training class at the Depot was to make the whole class aware of Mr. Tahmourpour’s religion and his request for accommodation in relation to his religious pendant. The evidence of that announcement established the element of differentiation on the basis of religion, but it did not by itself establish discrimination. Discrimination requires something more, which the judge correctly described as something harmful, hurtful or hostile....

[88]  Counsel for the employer argues that nothing in the evidence suggests the meetings were held in a disrespectful tone. Nor did they cover a topic the employer was not entitled to make inquiries about. There is no evidence of an adverse outcome resulting from the meetings or the placement of the memos on the grievors’ files. Clear indication of the employer’s good faith was provided by removing the memos as soon as the grievors made complaints.

[89]  Thus, argues the employer, the grievors have not made out a prima facie case of discrimination.

VI. Reasons

[90]  I agree with the arguments of the employer, and on the basis of the legal precedents submitted by the employer, all of which I do not intend to repeat, I agree that a prima facie case of discrimination has not been made out. The decision to hold a meeting and to place the memos on the grievors’ files might have constituted an unnecessary step in the leave management process, but I find these meetings and memos carried no tangible or measureable adverse effects.

[91]  The only purpose of the meetings and the memos was to advise the grievors that the attendance management tools available under the NAMP were not to be deployed. The hurt feelings, understandable as they are, do not constitute a tangible or measurable adverse effect, which is a necessary component of a discrimination claim.

[92]  The NAMP, however, clearly targets culpable absenteeism. In its first two sections, it states as follows:

1. Program Objective

The purpose of the National Attendance Management Program (NAMP) is to ensure consistent, supportive and fair management of employee attendance throughout the Correctional Service of Canada (CSC), while maintaining the spirit of the collective agreements and promoting attendance. The focus of the NAMP is on improving employee attendance through awareness, intervention and individual case management.

2. Background

Employees are responsible for regular attendance, since this is part of the expected working performance standard. The majority of employees enjoy coming to work and contributing to the success of the workplace. Most are punctual, report to work regularly, and make an effort to maintain good health, all of which is essential to achieving the mission, values and corporate objectives of the CRC.

Employees must attend work as scheduled, although it is recognized that from time to time employees are unable to perform their duties because of illness or injury. To provide continuity of income during these necessary limited absences, paid sick leave is available to cover these periods.

Managing attendance is a management responsibility. The NAMP provides an opportunity to improve active communication between employees and supervisors/managers. It aims to provide encouragement and support to employees so that they will report to work as scheduled, while allowing for early intervention of supervisors when the causes of absenteeism require it.

[93]  The uncontested evidence of the grievors surrounding the introduction of the NAMP into the workplace (by way of videoconference sessions, for example) made it clear to me that employees largely perceived the NAMP as targeting chronic fraudulent or otherwise illegitimate use of unscheduled leave.

[94]  While I appreciate Ms. Cater’s observation that this negative perception of the NAMP does not take into account some legitimate management objectives, the fact remains that employees view the NAMP as a tool to manage chronic abusers of unscheduled leave.

[95]  A plain reading of the policy justifies this view. Section 6 imposes a duty of vigilance for managers and supervisors, stating in part as follows:

...

On a monthly basis, supervisors must monitor and review leave usage of their employees. One of the keys is to identify a repetitive scenario of leave usage in the last 12 month period. Patterns, including but not limited to the following list, are noted:

1. Unusual duration of leave.

2. Significant history or pattern of leave usage which is considered as unusual.

3. Use of unscheduled Sick Leave and/or Family Related Responsibility Leave.

4. Negative balance of Sick Leave.

5. Use of unscheduled leave on a day that a shift exchange has been denied.

6. Use on three or more separate occasions of unscheduled Sick Leave and/or Family Related Responsibility Leave in a month.

7. Use of unscheduled leave is taken for any particular scheduled shift.

8. Use of unscheduled leave in conjunction with annual leave.

9. Use of unscheduled leave in conjunction with designated paid holidays.

10. Use of unscheduled leave on a specific day of the week or a certain day each month over a period of several months.

11. Use of unscheduled leave coinciding with other events.

12. Use of unscheduled leave following double shifts or overtime.

[96]  Ms. Cater described the grievors as loyal, hard-working, and greatly valued. I can certainly see why she feels this way. In my opinion, Mr. Falk spoke for each of them when he testified, “I am proud of the work ethic my father instilled in me; I wish it could be instilled in everybody who worked there.” These are hard-working, dedicated men. Every one of the grievors has a right to be proud of his service with the CSC.

[97]  Management was well aware of the reasons behind each grievor’s absence. Their medical leave was certified and well documented. There was never any issue with the need for or the legitimacy of their absences from the workplace.

[98]  There was a good deal of argument at the hearing over whether the evidence revealed management’s ability to exercise discretion when applying the NAMP. A word or two at this point is necessary with respect to the point at which the NAMP explicitly permits discretion. I agree with counsel for the employer that the grievors’ counsel repeatedly referred to an inapplicable section (namely, section 6.2) of the NAMP in trying to underscore his point about the exercise of discretion.

[99]  Section 6.1 deals with the role of managers and supervisors. Only if there is a concern over attendance is the matter referred to the NAMP coordinator, whose role is described in the following section, Section 6.2. This section provides a “Menu of Actions” listing tools supervisors and managers may use to improve attendance. It also contains the sentence “Supervisors/managers retain the discretion to use these tools at all times.” None of this, however, pertains to the grievors. They were never referred to the NAMP coordinator. Section 6.2 was never brought into play.

[100]  I find, however, that Section 6.1 does allow for a degree of discretion. Six paragraphs follow the list of 12 “repetitive scenario[s] of leave usage”, enumerated a few paragraphs earlier in this decision. Since this is the focal point of the hearing, I will reproduce the six paragraphs in their entirety:

Informal interviews are initiated with employees when there is a concern. Supervisors are to explore the reasons for the absence(s) by encouraging employees to discuss the reasons for their absenteeism. What appears to be leave misuse/abuse may not be, once all the facts are known.

The employee may invite a bargaining agent to the interview. The supervisor informs the employee that the objective of the interview is to improve attendance. If side issues should arise, the supervisor undertakes to discuss and resolve them at another time.

All interviews are confidential and are documented by the supervisor in a memo to file format, to be placed on the employee’s file, with a copy given to the employee.

If, after the interview, the supervisor is satisfied that the absence(s) is/are justified, the process stops.

If there appears to be attendance irregularities, and/or the employee is approaching the leave threshold, the supervisor will initiate an interview to explore the reasons behind absences during the last 12 months. At this point, it may be possible to determine that some type of support is required to assist the employee in improving their attendance record. During the interviews, the supervisor is expected to be sensitive, discrete, compassionate, and flexible. Any input by the employee in resolving the situation should be acknowledged positively, while taking into consideration operational requirements. When concerns with respect to the employee’s leave pattern exist, the leave record should be used to support these concerns. Expectations regarding leave usage should be discussed along with the impact absences have in the workplace. Discussions should remain constructive with the intent of finding a mutually acceptable way of resolving the issues.

In situations of serious/chronic illness, as confirmed by a physician, the need for accommodation measures should be considered. For example, in a situation such as pneumonia or a car accident which necessitates time off work, the employee will not be referred to the NAMP Coordinator. This is documented by the supervisor in a memo to file format to be placed on the employee’s file, with a copy given to the employee. Accommodation measures may be considered in circumstances where employees are experiencing problems of a personal nature. Each situation should be considered on its own merit.

[Emphasis in the original]

[101]  The first sentence of the first paragraph is telling: “Informal interviews are initiated with employees when there is a concern.” There was no cause for concern here! Why hold the meeting at all? There was no need to “discuss the reasons for their absenteeism” because the employer already knew the reasons.

[102]  The only time the leave threshold is mentioned is in the fifth of the six paragraphs, as follows: “If there appears to be attendance irregularities and/or the employee is approaching the leave threshold, the supervisor will initiate an interview to explore the reasons behind absences during the last 12 months.” Ms. Cater maintains that this particular sentence removes her discretion and that interviews must be conducted once the leave threshold is breached.

[103]  I disagree. The rest of that sentence is highly instructive. The only reason for holding such an interview is to “... explore the reasons behind absences during the last 12 months.” In this case, the reasons were patently obvious to management. There was nothing to explore.

[104]  I repeat: there was never any need to hold these meetings. All that would have been required was a simple note to file, acknowledging the breach of the leave threshold, with commentary to the effect that the nature of the absences satisfactorily explained the breach, and the breach did not, therefore, trigger the attendance-management provisions of the NAMP.

[105]  Careful note should be taken of my pointed observation that had this been done instead, these grievances would never have been filed.

[106]  One area of inquiry that went unexplored in the hearing was the difference in practice between the various divisions. Ms. Cater acknowledged, in her email message to the Warden dated May 7, 2014, that “my division at PI may be the only division following the letter of the program.” Does this not indicate some exercise of discretion?

[107]  In any event, memos were written, meetings were held, and feelings were hurt. I do not wish to downplay the negative effects experienced by the grievors, but I must agree with the findings at paragraph (75) of Cheung, cited above, that there must be some tangible and measureable adverse effect, beyond mere hurt feelings, for a prima facie case of discrimination to be made out.

[108]  In the language of Tahmourpour, at both the Federal Court and the Federal Court of Appeal, the effects must be objectively measureable as harmful, hurtful, or hostile. The memos and interviews did not amount to hostile actions; nor was there any objectively measureable harm.

[109]  I find it a significant gesture of good faith that management destroyed the memos at the grievors’ request.

[110]  The British Columbia Court of Appeal made a clear pronouncement on adverse effect in Coast Mountain. The attendance management program in that case consisted of five stages, and paragraphs 15 and 16 describe the first two, as follows:

15 The first phase of the Program consists of an informal interview of the employee conducted by his or her supervisor. The purpose of the interview is to let the employee know his or her rate or frequency of absences has been noticed and to give the employee an opportunity to provide the supervisor with some insight regarding the reason for the absences. The employee is told that the Employer expects all reasonable steps to be taken to minimize absences in the future and that attendance records are taken into account with respect to filling vacancies and promotions.

16 A Level 1 interview takes place if the attendance of an employee has not shown satisfactory improvement after the informal interview ....

[111]  As per Coast Mountain, “... an employee does not receive any adverse treatment at Level 1” (at paragraph 69). Logically, if there is no adverse treatment in Level 1, there is no adverse treatment in the phase before Level 1. The meetings with Mr. Mosby and Mr. Laynes do not even reach Coast Mountain’s Level 1; they are more in line with the informal interview conducted at the first phase in Coast Mountain. The evidence in the present case clearly shows no objectively measureable adverse treatment of the grievors.

[112]  Coast Mountain also contains a helpful definition of discrimination. At paragraph 57, it refers to the Supreme Court of Canada’s decision in Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114:

[57] ... Discrimination ... means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics ....

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.

...

[113]  Based on this definition, in the absence of any objectively quantifiable adverse effect, there was no discrimination and no violation of clause 19.01 of the collective agreement.

[114]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VII. Order

[115]  The grievances are dismissed.

July 12, 2019.

James R. Knopp,

a panel of the Federal Public Sector Labour Relations and Employment Board