HomeMy WebLinkAboutUnion 16-08-30
IN THE MATTER OF AN ARBITRATION
B e t w e e n:
THE CENTRE FOR ADDICTION AND MENTAL HEALTH
(the “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 500
(the “Union”)
and in the matter of a policy grievance concerning the Attendance Support Policy.
Russell Goodfellow – Sole Arbitrator
APPEARANCES FOR THE EMPLOYER:
Daryn Jeffries, counsel
Evan Daikov
Myfanwy Marshall
Aislinn Cairns
Adam Hewitt
Claudia Dioleta
Bridgette McKenzie
APPEARANCES FOR THE UNION:
David Wright, counsel
Nancy Pridham
Thomas Anderson
Hearing held on June 7, 2015
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AWARD
This award arises out of a policy grievance challenging the Employer’s Attendance Support
Policy.
As part of settlement discussions, the Employer agreed to a number of amendments to the
Policy, leaving only one issue outstanding. The issue was described in paragraph 7 of an Interim
Agreement setting out the various amendments to the Policy, as follows:
7. The parties agree that the only remaining issue in dispute between them
related to this policy grievance and the wording and implementation of the
Policy (subject to paragraph 8 below) is the threshold for triggering the
entering and moving up steps in the Policy and this will be litigated before
Arbitrator Goodfellow on June 7, 2016 and any further as yet unscheduled
dates. In this regard, the Union agrees to provide in writing by May 2, 2016
its position with respect to what the incident and hours threshold ought to be.
CAMH shall provide OPSEU with a draft agreed statement of fact for the
above issue by May 16, 2016 and OPSEU shall provide any comments,
additions or changes by May 30, 2016. If necessary a conference call with
Mr. Goodfellow shall be held between May 30, 2016 and June 6, 2016 in
order to determine whether any factual issues in dispute can be resolved to
avoid any viva voce evidence on June 7, 2016.
There was no need for a conference call. The parties agreed to the following facts:
Agreed Statement of Facts
1. The Centre for Addiction and Mental Health (“CAMH”) is Canada’s largest
mental health and addiction teaching hospital, as well as one of the world’s
leading research centres in the area of addiction and mental health. CAMH’s
mission is to combine clinical care, research, education, policy development
and health promotion to help transform the lives of people affected by mental
health and addiction issues. The mission of CAMH is committed to providing
comprehensive, well-coordinated, accessible care for people who have
problems with mental illness or addiction. A wide range of clinical programs,
support and rehabilitation services are provided that meet the diverse needs of
people who are at risk and are at different states of their lives and illnesses.
2. As an addiction and mental health facility the patient population of CAMH
differs significantly from the patient population of a general hospital. Staff at
CAMH routinely interact with patients who have been diagnosed with mental
health or addiction issues, some of whom may be homeless, and some of whom
are unable to perform personal care functions.
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3. CAMH has a philosophy of client-centred care and its staff work with family
doctors, home support services, community agencies and other health care
providers to make sure that clients and their families can receive assistance in
their own communities and homes if possible. Additionally, they address larger
issues that arise from four major factors affecting health – housing,
employment, social support and income support.
4. The Ontario Public Service Employees Union (the “Union”) represents a wide
variety of non-Registered Nurse and non-managerial employees at CAMH.
The collective agreement between CAMH and the Union is attached as
Appendix 1 and expired on March 31, 2016. Notice to bargain a renewal
collective agreement was provided on February 2, 2016 and the parties will be
entering collective bargaining negotiations for a renewal collective agreement
later this calendar year.
5. On June 24, 2013, CAMH introduced a new Attendance Support Policy (the
“Policy”) effective July 1, 2013. An email from VP Human Resources Ms Kim
Bellissimo of that date was sent to all employees and refers to some of the
rationale behind the Policy (Appendix 2). The email attached the Policy
(Appendix 3), an FAQ (Appendix 4) and an Acknowledgement Form
(Appendix 5).
6. Under the Policy the threshold for triggering entry into and progression
through the stages of the Policy is set at exceeding three incidents or 37.5 hours
in six months (January to June and July to December each year).
7. By Memorandum of Agreement dated April 29, 2016 (Appendix 6), CAMH
and the Union agreed to amendments to the Policy and it is in the context of
this amended version of the Policy and the agreements in that MOA that the
parties are asking this Board to determine the appropriate threshold for
triggering entry into and progression through the stages of the Policy.
8. In setting the thresholds CAMH considered the arbitral jurisprudence, its
collective agreements, its historical absenteeism rates (Appendix 7) and other
attendance support policies (see Appendices 8, 9, 10 and 11), none of which
were from a mental health facility.
9. The OHA Attendance Support Guide Appendices set out the thresholds used in
seven other Ontario Hospitals (Appendix 12), none of which are mental health
facilities.
10. The absenteeism rates in Appendix 7 do not include LTD and WSIB absences,
but do include absences due to a disability. An updated absenteeism rate chart
is attached as Appendix 13.
11. Most of the employees in the bargaining unit work 7.5 hours shifts, but some
work 11.25 hour shifts. Those who work longer shifts work fewer shifts.
12. There are approximately 1,860 employees in the Union’s bargaining unit. In
early 2015, 171 of them received letters under the ASP program.
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Of the various appendices referred to in the Agreed Statement, portions of only two need be
set out. They are the “historical absenteeism rates”, referred to in paragraph 8, and the “updated
rates” referred to in paragraph 10. Both exclude WSIB-related absences and absences due to
long-term disability, as does the Policy.
The following are the historical rates:
CAMH Average Days of Absenteeism
Q1 YTD Q2 YTD Q3 YTD Q4 YTD
2014-15 1.79 3.03 5.34 7.02
2013-14 2.18 3.53 5.46 6.91
2012-13 2.17 3.86 6.28 8.23
2011-12 2.35 4.17 6.51 8.61
2010-11 2.02 4.26 7.15 9.20
Non-Union Average Days of Absenteeism
2014-15 1.08 1.76 3.07 4.61
2013-14 1.37 2.30 3.40 4.70
2012-13 1.04 1.90 3.67 4.06
2011-12 1.33 2.21 3.94 5.34
2010-11 1.20 2.06 3.29 4.48
OPSEU Average Days of Absenteeism
2014-15 1.55 2.48 4.55 5.98
2013-14 1.86 3.00 4.75 5.97
2012-13 1.78 3.26 5.27 7.10
2011-12 1.95 3.48 4.74 7.25
2010-11 1.58 3.53 6.12 7.89
ONA Average Days of Absenteeism
2014-15 3.79 6.44 11.66 14.74
2013-14 4.46 7.12 10.59 13.74
2012-13 4.63 8.13 12.66 17.09
2011-12 4.80 8.65 13.00 16.90
2010-11 4.76 9.54 15.48 20.30
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The following are the “updated rates”:
Overall Average Days of Absenteeism
Fiscal Year Q1 YTD Q2 YTD Q3 YTD Q4 YTD
2015 – 2016 1.75 3.18
2014 – 2015 1.79 3.03 5.34 7.02
2013 – 2014 2.18 3.53 5.46 6.91
2012 – 2013 2.17 3.86 6.28 8.23
Non-Union Average Days of Absenteeism
2015 – 2016 1.04 1.62
2014 – 2015 1.08 1.76 3.07 4.61
2013 – 2014 1.37 2.3 3.4 4.7
2012 – 2013 1.04 1.9 3.67 4.06
OPSEU Average Days of Absenteeism
2015 – 2016 1.54 2.7
2014 – 2015 1.55 2.48 4.55 5.98
2013 – 2014 1.86 3 4.75 5.97
2012 – 2013 1.78 3.26 5.27 7.1
ONA Average Days of Absenteeism
2015 – 2016 3.63 6.94
2014 – 2015 3.79 6.44 11.66 14.74
2013 – 2014 4.46 7.12 10.59 13.74
2012 – 2013 4.63 8.13 12.66 17.09
Submissions
Union
Describing the remaining issue as the threshold for employees getting into the ASP and
advancing through or out of it, the Union submits that the test is “reasonableness” and that the
threshold established by the Employer of more than three incidents or 37.5 hours in a six-month
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period is not reasonable. The Union submits that the threshold ought to be ten or more days or
shifts over a 12-month period, with no reference to incidents.
In support of its proposal, the Union refers to the collective agreement sick leave provisions.
Article 17 provides that employees earn sick days at the rate of 3/4 of a day per month to a
maximum of nine days per year. The Union submits that ten days per year is therefore the
appropriate threshold for absenteeism concerns. To establish a lower threshold, the Union
submits, would create a disincentive for employees to use an earned benefit. Fearing, for
example, in cold or flu season that things might only get worse as the season progresses,
employees might force themselves to come into work when ill, with predictably negative
consequences for themselves, patients and coworkers.
The Union notes that the Employer based its threshold, in part, on comparisons with other
facilities. However, none were mental health facilities (see paragraph 9), which, the Union
submits, tend to have a higher threshold. The Union refers to the Royal Ottawa Hospital, which
uses the average absenteeism rate in the hospital measured over 12 months, Waypoint, which
uses 10 incidents or 90 hours of sick leave also over a 12-month period, and Ontario Shores,
which uses five incidents or six shifts over six months. The Union submits that mental health
facilities provide a better comparator because they deal with the same kind of patient population:
one that presents unique challenges of homelessness and the frequent inability of patients to care
for themselves (see paragraph 2).
Even amongst the comparators identified by the Employer, however, (see below) the Union
notes that only one sets a lower threshold of incidents (Scarborough Hospital) and only one
(University Health Network) considers hours rather than days or shifts. The Union submits that
days or shifts represent a fairer approach, especially because of the effect on employees working
11.25-hour shifts. The Union submits that such employees are unfairly penalized by a threshold
of more than 37.5 hours because they will cross it after 3.4 shifts as compared to after five shifts
for 7.5-hour employees. The Union notes that 11.25-hour employees accumulate sick leave on
the basis of 3/4 of an 11.25-hour day, not a 7.5-hour day, and submits that the same “a day is a
day” approach should apply here.
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Another reason that the existing threshold is unreasonable, the Union submits, is its
relationship to the historical absenteeism averages. The Union’s proposed threshold of 10 days
per year compares more favourably to the overall absenteeism rate of 9.2 days in 2010-2011 and
the OPSEU averages of 7.89 days, when the Employer began tracking the problem. Referring to
the ONA rates, the Union adds that its members appear to be caught in a “solution” to a problem
not of their making. In 2010-2011 the rate in this bargaining unit was 1/3 that of the ONA unit.
The Union submits that its members should not be unfairly burdened by another bargaining
unit’s absenteeism problems and that there can be different thresholds for different groups.
The Union also submits that a six-month measurement period is unreasonable. While the
Union would be content with a six-month review period, noting that it would be useful for
employees to become aware, as soon as possible, of any potential concerns, a biannual
measurement period could penalize employees on the basis of a single bad season. Six months is
also inconsistent, the Union submits, with the collective agreement sick leave provisions referred
to earlier.
The Union asks that the existing threshold be set aside and that some or all of its proposal be
substituted instead.
Employer
The Employer begins its submissions by noting that the parties have agreed on all aspects of
the Policy except the “threshold for triggering the entering and moving up steps” and that the test
is “reasonableness” or, as also stated in the case law, whether the Policy has a “rational basis”.
The Employer emphasizes that the test is not “perfection” and it is irrelevant whether the
Union’s proposed threshold might also be considered reasonable or even more reasonable in the
eyes of some. The question is whether the threshold of exceeding three incidents or 37.5 hours in
a six-month period is “reasonable”. The Employer submits that it most certainly is.
The Employer refers to paragraph 8 of the Agreed Facts. That paragraph lists all of the
matters the Employer took into account in arriving at the threshold, including the thresholds set
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out at numerous comparator facilities, almost all of them hospitals. The Employer submits that
there is no basis, and certainly no proven basis, for concluding that there is anything different
about a mental health facility than a hospital that would require a different and higher threshold.
The Employer also notes that the Union’s proposal appears to rely heavily on the collective
agreement sick leave provisions. However, such provisions, the Employer submits, have been
found in the case law to have no bearing on the issue: see e.g. Hydro-Electric Commission of
City of Etobicoke and IBEW (1988), 11 CLAS 40 (Knopf).
The Employer identifies four possible issues in the Union’s submissions: (i) the precise
number of incidents and hours; (ii) the use of hours instead of days or shifts; (iii) the use of both
incidents and hours; and (iv) the duration of the assessment/measurement period.
As to the first, the Employer emphasizes that the impugned threshold is not three incidents or
37.5 hours in a six-month period but more than three incidents or 37.5 hours. According to the
Employer, that threshold is well within the ballpark of “reasonableness”, both at six months or if
prorated over 12 months. It is supported by the comparators (indeed, it is identical to the
threshold in place at the University Health Network) and by the average absenteeism rate in this
bargaining unit and this facility.
Describing the next issue as “minor”, insofar as it affects only a small number of employees,
the Employer notes that one of the Union’s own comparators uses hours rather than days or
shifts. The Employer also points out that the alleged unfairness to employees working 11.25-
hour shifts is attenuated by the fact that such employees work fewer shifts (see paragraph 11).
With respect to the third question – the use of both incidents and hours – the Employer notes
that the vast majority of comparators, including two of the three to which the Union refers, also
use two methods. This is because both the duration and frequency of absences clearly matter.
Finally, with respect to the length of the assessment period, the Employer makes two points.
First, six months is consistent with several of its comparators and with one of the Union’s own
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comparators. Second, I have no jurisdiction to address it. The Employer submits that my
jurisdiction is defined by paragraph 7 of the Interim Agreement (see above). The first sentence of
that paragraph states that the only remaining issue is the “threshold for triggering the entering
and moving up steps in the Policy”. According to the Employer, this does not include the time
period covered by those steps.
Amplifying on the argument, the Employer notes that the parties worked through the Policy
in exhaustive detail in coming up with the amendments expressed in the Interim Agreement and
that the six-month measurement periods form a highly prominent part of the Policy. Hence if
there were any disagreement about the length of those periods, it would have been, and would
need to have been, expressly stated. It was not; to the contrary, the second sentence of paragraph
7 shows what the parties meant by the first sentence. In requiring the Union to advise the
Employer of its position on “what the incident and hours threshold ought to be” (emphasis
added), no mention is made of the time period over which those incidents or hours were to be
measured. A review of other provisions of the Agreement alongside the terms of the Policy
supports the same conclusion, the Employer submits.
The Employer relies on the attendance management policies at the following employers as
comparators: University Health Network, Queen’s University, St. Michael’s Hospital, St.
Joseph’s Health Centre (Toronto), Chatham-Kent Health Alliance, North York General Hospital,
The Scarborough Hospital, Hotel-Dieu Grace Healthcare, Kemptville District Hospital, Kingston
General Hospital, and Health Sciences North.
The Employer also relies on the following cases: Hamilton (City) and CUPE, Local 5 (1995),
39 CLAS 286 (Gorsky); Lilydale Co-operative Ltd and UFCW, Local 312A (1997), 49 CLAS
130 (Alta); Toronto Hydro and Canadian Union of Public Employees, Local 1 (Attendance
Program Grievance), [2003] OLAA No 473 (Saltman); Spartech Color (Stratford), a Division of
Spartech Canada Inc and International Association of Machinists and Aerospace Workers, Local
103 (Attendance Grievance), [2008] OLAA No. 381 (Crljenica); Corporation of the City of
London and London Professional Firefighters’ Association, (2012) CanLII 18862
(Surdykowski); London (City) and CUPE Local 101 (EASP Policy) (2013), 234 LAC (4th) 321
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(Sheehan); Oakville (Town) and CUPE, Local 136, [2005] OLAA No 393 (Kaplan); York
University and YUSA (2012), 221 LAC (4th) 48 (Surdykowski); and Hydro-Electric Commission
of City of Etobicoke and IBEW case, supra.
The Employer asks that the threshold set out in the ASP be affirmed and that the remaining
aspect of the policy grievance be dismissed.
Union Reply
The Union replies, first, by submitting that the length of the measurement period forms an
integral part of any threshold and is therefore properly subject to challenge. The question is
necessarily and inherently the number of absences over a prescribed period of time.
With respect to the substance of that issue, the Union notes the Employer’s reference to a
pro-rating of the six-month requirement over a one-year period. The Union submits that this
supports its argument that six months is unreasonable.
The Union also reiterates the unfairness to the 11.25-hour employees occasioned by the 37.5-
hour threshold. Such employees will cross the threshold part way through their fourth shift rather
than at the start of a sixth shift as will be the case for 7.5-hour employees. Further, the Union
notes that it is not a “small number” of employees that fall into this category but approximately
ten percent of its membership.
As for the Employer’s cases, the Union submits that none appear to deal specifically with the
threshold of instances and hours or with the measurement period. The Union also submits that
Hydro-Electric Commission of City of Etobicoke, supra, was incorrect in its rejection of
collective agreement sick leave provisions as a relevant factor, noting that the Employer here
expressly referred to its sick leave plans in the materials accompanying the Policy.
Finally, the Union submits that it is both unreasonable and irrational to fail to consider
approaches taken at other employers that care for the same kind of patient population.
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Decision
Having reviewed the Agreed Statement of Facts and appendices, the collective agreement,
the case law, and the various comparator policies referred to by the parties, I am unable to find
the threshold set out in the Policy, in whole or in part, to be unreasonable or lacking in a rational
basis.
While, in my assessment, there was certainly room for the Employer to have established a
different threshold – one with elements that might be seen as no less reasonable – that is not the
test. The question is simply whether the Employer has failed to set a reasonable threshold. In my
view, the threshold set out in the Policy meets the necessary test.
Both parties made substantial reference to attendance management policies at other
employers and so will I. In doing so, however, I am not persuaded by the Union’s argument,
based simply on the nature of the patient population alone, that policies from mental health
facilities provide a better comparator than policies from hospitals more generally, or, based on
the policies presented, that such thresholds are necessarily higher or more lenient. Adopting the
average absenteeism rate at the facility generally, as applies at the Royal Ottawa, for example,
would be of no assistance to the Union here.
Further, I note that in support of its proposed threshold the Union appears to attach
considerable weight to the collective agreement sick leave provisions, specifically the fact that
employees accrue paid sick days to a maximum of nine per year. The argument is that if
employees earn that number of days over that period they should be entitled to use that number
of days over that period and any policy that might inhibit such use, as would be the effect, the
Union submits, with the Employer’s threshold here, is unreasonable.
As noted by Employer counsel, a substantially similar argument was raised and addressed in
Hydro-Electric Commission of City of Etobicoke and IBEW, supra. There, Arbitrator Knopf
stated that in order, “[f]or the Union to succeed in this argument, it must show that the Policy
itself amends or puts additional requirements upon the sick pay provisions ...”. Noting first that
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the existence of a specific number of collective agreement sick days does not confer a “blanket
entitlement” to their use, Arbitrator Knopf continued:
31. The next question to address is whether the Policy conforms with the KVP
requirement that "it must not be unreasonable". With the removal of the
requirement to attend before the Commission's doctor, I am satisfied that the Policy
cannot be considered unreasonable. The Policy is basically a counselling system
designed to prevent excessive absenteeism. It is not reasonable to suggest that the
Employer has no interest in absenteeism until it becomes excessive. It is reasonable
for an employer to try to prevent absenteeism before it becomes excessive, both
from the prospective of efficient productivity and in fairness to the remaining
employees who have to carry the burden of the remaining work. The Union
suggests that the Policy is an excessive response and therefore unreasonable
because it is triggered at such a low threshold of absences. For example, six quarter
day absences per year will trigger the implementation of the Policy as opposed to a
sick bank of 18 days which is allowed under the collective agreement. But it is not
my function to impose my opinion upon the parties as to what is a reasonable
threshold. Suffice to say that I have not been satisfied that the threshold here is
unreasonable. Frequent short absences can be as troublesome to both parties as
absences of a long duration. Further, I do not agree that the Employer has no right
to enquire into an absenteeism record until 18 days have accumulated in one year.
The sick pay provisions in the collective agreement do not limit management in
such a way. That argument confuses the differing standards that might be
applicable for a non-disciplinary suspension or termination for absenteeism with
when an employer can exercise its right to begin enquiry into or counselling for
absenteeism. Thus, I do not agree that the remaining aspects of the Policy are, per
se, unreasonable.
Or, to put it only slightly differently, the fact that parties may have agreed that employees are
entitled to accrue a specific number of paid sick days per year does not mean that they have also
agreed, expressly or impliedly, that taking that number of sick days, or any other number, is not
an issue deserving of attention in the form of an attendance management policy. I agree. And I
would note the existence of further support for this view in City of Hamilton, supra, Lilydale Co-
operative Ltd., supra, and City of London, supra.
Turning to the issues as I see them, specifically, the use of both instances and hours, but not
days or shifts, the numbers of instances and hours used, and the length of the measurement
period, I note that of the 13 policies provided by the parties as comparators: (i) only two or three
use only one criteria, albeit, typically, instances and days or shifts rather than instances and
hours; (ii) only two use hours as compared to days or shifts; (iii) none give any indication of any
difference in approach for employees working longer than the traditional 7.5 hour shift despite
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its prevalence in hospitals generally; and (iv) approximately half use a 12 month, rather than a
six month or, in one or two instances, seemingly, four month, measurement period. Empirically,
therefore, the only element of the existing threshold that would appear to reflect a true minority
position is the use of hours rather than days or shifts. The rest is well within the various
comparators, including those offered by the Union.
Looking at the question of hours vs. days or shifts somewhat more fully, the only possible
differences would appear to be in the accumulation of partial days and the alleged
disproportionate effect on employees working 11.25-hour shifts. However, it is far from obvious
to me that in those policies where the threshold is expressed in days or shifts absences for partial
days or partial shifts do not count. I would need proof of that. Second, I repeat, despite the
prevalence of extended shifts in the hospital setting generally, no policy to which the parties
referred appears to draw any distinction based on length of shift. Rather, at least as written, the
policies appear to adopt a one “size fits all” approach.
And that approach has been upheld in the case law. In City of London, supra, a threshold of
more than 96 hours over a 12-month period for all city employees was challenged by the
firefighters bargaining unit on the basis that it was inherently prejudicial to employees working
24-hour shifts. Proceeding from the starting point that there was nothing prima facie
unreasonable about a uniform standard, Arbitrator Surdykowski rejected that argument, noting,
as well, that statistical evidence from the employer appeared to support a contrary conclusion.
Oddly, the converse of the City of London argument appears to have been advanced, also
without success, by employees working eight-hour shifts in n Town of Oakville, supra. There it
was submitted that a threshold of six days over a 12-month period was unfair and discriminatory
having regard to the fact that firefighters employed by the City were subject to the same standard
while working fewer, 12-hour, shifts. In the absence of any evidence of actual unfairness in
application or result, however, Arbitrator Kaplan dismissed the grievance.
I am similarly of the view that there is nothing inherently prejudicial or unreasonable about a
uniform threshold. However, that does not mean that it could not be so in application –
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something that would depend upon the facts of a given case, including the particular arrangement
of absences. And insofar as the Policy now provides that, “CAMH and its managers will exercise
discretion in the application of the Policy”, one would expect that this would be something that
the Employer would seek to guard against, lest it become the subject matter of a grievance.
The following additional observations may be made. First, while the Union points, perhaps
not inaccurately, to the absenteeism rate in the nursing bargaining unit as the real driver of the
Policy, the same information demonstrates that the threshold set by the Employer, at least
converting hours to days, is in excess of the historical absenteeism rates in this bargaining unit as
well as in the facility generally. And that, too, is in contrast to some of the cases, where lower
thresholds appear to have been set, sweeping in much large numbers of employees than the less
than 10% of the bargaining unit that would appear to be affected here: see e.g. Toronto Hydro,
supra, and Town of Oakville, supra.
Second, with respect to the six-month vs. 12-month measurement period, and the Union’s
“seasonal argument”, I note that it still takes four or more separate instances over that period or
more than five full shifts (at least for 7.5 hour employees) to cross the threshold; that is, the
duration of the measurement period cannot be looked at in isolation from what is being measured
over that period and the requirements here, in the light of the evidence presented, including the
historical absenteeism averages and the comparators, would not appear to be “unreasonable” or
“lacking a rational basis”.
Third, in view of the preceding conclusion, it is unnecessary for me to determine the
Employer’s “jurisdictional” argument concerning the length of the measurement period.
However, I would note that having regard to the terms of paragraph 7 of the Interim Agreement,
as well as the Appendix, the argument was far from frivolous.
For all of these reasons, the balance of the policy grievance is dismissed.
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DATED at Toronto this 30th day of August 2016.
Russell Goodfellow – Sole Arbitrator
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5
(
O
N
L
A
)