Managing absenteeism and dealing with the associated costs are among the most difficult things employers face. Accordingly, many employers try to incentivize employees to improve their attendance by providing bonuses based on meeting attendance thresholds. Seems simple enough. However, what if an employee is off work on a disability leave? That employee is off work through no fault of his/her own yet otherwise had perfect attendance. Should such an employee be able to claim the attendance bonus?

A recent arbitration decision says “no”.

In Halltech Inc. and United Steelworkers of America ((2013), 232 L.A.C. (4th) 433), the employer had a policy whereby employees with a perfect attendance record for the year would be paid a bonus. The grievor had perfect attendance except for a two-day stint on workers’ compensation. The Union argued that the absence, which was non-culpable, should not have counted against the grievor’s attendance record and that denying the bonus was not only unfair, but discriminatory under the Human Rights Code.

While the arbitrator noted that the situation may not have been “fair”, the arbitrator found that the parties agreed to specific collective agreement language and that a past practice existed that dealt with the types of absences that were not counted. Those non-counted or excluded absences were employer-paid leaves under the collective agreement (e.g., jury duty, union leaves, holidays, etc.). Accordingly, there was no breach of the collective agreement.

On the human rights issue, the arbitrator found that because other individuals who missed work on unpaid leaves (but otherwise had perfect attendance) also did not receive the bonus, there was no differential treatment based on the grievor’s disability, and therefore no human rights violation.

Employer take-aways

This case is important for two reasons:

• It confirms an important principle that employees on leave of absence are not generally entitled to workplace benefits/policies that are based on actually working.
• It confirms the appropriate comparator group when analyzing whether the withholding of a benefit from an employee with a disability is discriminatory. In this case, the appropriate comparator group was not all employees, but all employees on an unpaid leave. If there had been an employee on an unpaid leave that had received the bonus while the grievor did not, the result would have likely been different.

Employers with attendance bonuses should be aware that withholding a bonus from an employee who misses work based on a non-culpable absence (e.g., a disability leave) may not be a breach of the Human Rights Code. In determining the application of an attendance bonus policy, employers should ensure that similarly situated employees (e.g., all employees on an unpaid leave) are treated the same. If employees in the same comparator group are treated differently (e.g., if absences based on religious grounds are not counted, but absences based on a disability are counted), a human rights breach may exist.

Employers should also observe the terms of any collective agreements language and whatever past practices exist. For example, if a collective agreement frames a leave of abence as “working time”, that absence should not be counted.

Finally, employers should be mindful that, generally speaking, statutory leaves will be protected such that they should not be counted as an absence under the attendance bonus plan.

By Daniel Pugen