In Coast Mountain Bus Company, the British Columbia Court of Appeal recently restored a British Columbia Human Rights Tribunal decision that found that certain aspects of Coast Mountain’s attendance management program (“AMP”) were discriminatory. This decision of the Court of Appeal overturned a 2009 decision of the British Columbia Supreme Court.
Coast Mountain’s AMP program set out levels for employees to move through progressively if their above-average absenteeism did not improve. Levels 1 and 2 of the AMP involved a warning to the employee that the employer had concerns regarding their absenteeism and would require medical confirmation if the employee suffered from a disability. Level 3 involved speaking to the employee and warning him or her of the risk of termination if a certain attendance level was not reached over the course of the next two years. At the Level 3 stage, the average rate of absenteeism for transit operators was used as a benchmark to establish the required level of attendance at work. Employees were advised that any absence while on long-term disability, short term disability or worker’s compensation claims would also be taken into account when the employer calculated their absenteeism level.
The Court of Appeal concluded that parts of the AMP were discriminatory when applied to disabled employees. While the Court concluded that the application of Levels 1 and 2 to disabled employees was not discriminatory, it found that Level 3 of the AMP, in which absences relating to disability were used to calculate the attendance levels of employees, resulted in a prima facie case of systemic discrimination.
The Court found that adverse treatment arose for employees with disabilities when, as a result of the inclusion of their disability-related absences in the AMP, they reached Level 3 – and the related threat of termination for excessive innocent absenteeism.
The Court explained that employers cannot address the absenteeism of disabled employees by applying an AMP in the same way as they apply the AMP to other employees. AMPs must properly identify and accommodate disabled employees who may be unable to attend work regularly as a result of their disability.
In addressing the question of whether the employer had established a bona fide occupational requirement (“BFOR”) which would justify the discriminatory treatment of the disabled employees, the Court applied the well-established Meiorin test, and confirmed that this test does not require the employer to show that it would be impossible to accommodate, but rather only to show that it would be impossible to accommodate without incurring undue hardship. However, as the employer in this case had failed to provide any evidence about the hardship it would incur in accommodating the disabled employees for the purposes of the AMP, the employer was unable to justify the prima facie discrimination.
In terms of remedy, the Court of Appeal overturned the Tribunal’s order that the employer participate in mediated negotiations with the union regarding changes to be made to the AMP, finding that the Tribunal lacked the jurisdiction to make such an order. Rather, the Court clarified that the employer could make revisions to the program to accommodate disabled employees, and the union would have to lodge a complaint with the Tribunal if it believed the program continued to be discriminatory. The Court upheld the Tribunal’s damage award.
In this case, the Court of Appeal confirmed that the application of an AMP to disabled employees does not in itself constitute systemic discrimination; however, the way the
program is applied may result in discrimination. The decision appears to limit employers’ ability to terminate for excessive innocent absenteeism, as it suggests that employers may not be able to take disability-related absences into account for attendance management purposes in all cases.
This decision adds but another dimension to an already complex and unclear situation. Coast calculated disability absences at Level 3 of their AMP to determine if there would be improvement of prognosis for employment. This would appear to be entirely consistent with the approach adopted by the Supreme Court of Canada in the McGill Health, Keays and Hydro Quebec decisions. The British Columbia Court of Appeal’s decision is contrary to this, and leaves employers in the position that they cannot complete the last phase of the Supreme Court’s analysis.
As this newsletter went to print, leave to appeal in this case had not been filed at the Supreme Court of Canada. Thus, this decision represents the state of the law in British Columbia, and is likely to influence decisions in other Canadian jurisdictions as well.