The BC Supreme Court has overturned a finding by the Human Rights Tribunal that an Attendance Management Program (“AMP”) implemented by the Coast Mountain Bus Company systemically discriminated against employees with chronic or recurring disabilities.
The Court quashed a number of aspects of the Tribunal’s decision including the Tribunal member’s findings that:
- the application of the AMP to employees with chronic or recurring disabilities was discriminatory;
- that placement in the AMP was discriminatory because it causes stress to those who are inducted into it or received letters from the employer as a result;
- that the AMP was discriminatory due to issues around lack of internal sharing of medical information;
- that the employer failed to accommodate employees with chronic or recurring disabilities;
- that the AMP was not a bona fide occupational requirement.
Instead, the Court found that the application of AMP to employees with chronic or recurring disabilities, the early placement of employees in the AMP and letters issued pursuant to induction into the AMP did not breach the Human Rights Code. In addition, Court found the Tribunal member exceeded her jurisdiction in ordering “Tribunal assisted mediation” as a remedy and in attempting to remain seized of the matter.
The Tribunal’s decision represented a departure from previously established arbitral and judicial jurisprudence regarding Attendance Management Programs and had caused significant concern for employers who utilize this tool for controlling and reducing absenteeism costs. As a result, this decision of the Court is good news for those employers in BC who currently have attendance management programs or who plan to implement such programs in future.
Harris & Company was legal counsel for the successful employer. This decision and its effect on attendance management programs and the duty to accommodate will be discussed in greater detail at our 1/2 Day Training seminar on Attendance Management on April 20th, as well as at our annual client seminar in June.
(Click here for copy of Decision)