Running Head: ATTENDANCE MANAGEMENT PROGRAM 1

Transcription

1 Running Head: ATTENDANCE MANAGEMENT PROGRAM 1 Attendance Management Program for the Niagara Falls Fire Department James P. Jessop City of Niagara Falls Fire Department, Ontario, Canada

2 ATTENDANCE MANAGEMENT PROGRAM 2 Certification Statement I hereby certify that this paper constitutes my own product, that where the language of others is set forth, quotation marks so indicate, and that the appropriate credit is given where I have used the language, ideas, expressions or writings of another. Signed:

3 ATTENDANCE MANAGEMENT PROGRAM 3 Abstract The problem of worker absenteeism in the public sector is a burden to taxpayers and the organization. With regards to the NFFD, the cost of employee absenteeism has been analyzed through the following lenses: (a) the economic cost, (b) the impact on training hours and, (c) the impact on the ability to recall additional resources. The purpose of this applied research project (ARP) was to identify the elements of an attendance management program (AMP) that influences its overall effectiveness and to incorporate these elements into recommendations that may reduce absenteeism in the NFFD. The research methods employed for this ARP included both historical and descriptive methods. The historical method included an academic and practitioner literature review, as well as a review of arbitration and court decisions. The descriptive method included both a questionnaire and subsequent personal interviews. The questions the research attempted to answer included: (a) defining employee absenteeism, (b) determining how other organizations are managing absenteeism, (c) determining the relevant legislation that would impact an AMP in Niagara Falls and, (d) determining the costs associated with absenteeism and administering an AMP. The conclusions that have been drawn from the research are as follows: First, absenteeism can be viewed through a number of different lenses depending on the situation. Second, the jurisprudence has set clear expectations for municipalities that decide to implement an AMP. Third, the implementation of an AMP will almost certainly result in a grievance. Finally, employee absenteeism appears to be influenced by the labour relations climate of the organization.

4 ATTENDANCE MANAGEMENT PROGRAM 4 The recommendations that were drawn from the research are as follows: First, the design of the AMP should be well defined, taking into account the relevant legislation. Second, the union should be engaged at the design phase of the AMP; transparency and communication were identified as critical components of an AMP. Third, the design of the AMP must include provisions for managers to exercise discretion. Finally, the NFFD should endeavor to make labour relations a top priority for the organization.

5 ATTENDANCE MANAGEMENT PROGRAM 5 Table of Contents Certification...2 Abstract...3 Table of Contents...5 Introduction...6 Background and Significance...7 Literature Review Procedures Results Discussion Recommendations References Appendix A: Figure Appendix A: Figure Appendix B Appendix C: Figure Appendix C: Figure Appendix C: Figure Appendix C: Figure

6 ATTENDANCE MANAGEMENT PROGRAM 6 Introduction The problem of worker absenteeism in municipal governments is a burden to taxpayers, citizens and the economy, and is arguably one of the most challenging aspects of personnel management for municipalities. Excessive absences from work have proven disruptive and costly to the output, scheduling and general functioning of municipalities, creating increased work for human resources and payroll, difficulties in budget management and lower levels of service. It is estimated that absenteeism lowers productivity rates in organizations by 1 to 2 % (Booth, 1993). In 2004, the cost of absenteeism in the Canadian economy was estimated to be in excess of 18 billion dollars annually; factoring in the costs of lost production, health care costs, replacement workers, retraining and other related costs (Secord, 2008). The Canadian Labour Force Survey demonstrates a steadily rising trend in workplace absence for personal reasons over the last 10 years. Canadians lost an average of 7.4 days due to personal reasons in 1997, a number which rose to 9.6 days by 2005 and 10.2 days by Full time employees in the public sector score significantly worse that their private sector counterparts, averaging 12.2 days per year compared to 8.9 days in the private sector (Statistics Canada, 2006). Municipal government workers, including fire fighters, rank among the highest in work days missed along with other public sector fields including health care and social assistance (Statistics Canada, 2006). Statistics Canada (2006) identifies seven key factors that appear to impact employee absenteeism: (a) family circumstances, (b) physical health of the employee, (c) the work environment, (d) the degree of job stress, (e) labour relations, (f) union coverage, and (g) work schedules. A further analysis reveals that of the seven factors, four appear to increase the probability of absenteeism: family circumstance, physical health, working environment and

7 ATTENDANCE MANAGEMENT PROGRAM 7 union coverage. Given the growing enormity of the problem of absenteeism in the Canadian public sector, especially municipal fire departments that are facing measures of austerity related to the current political and economic climate, the study of strategies for this problem for the Niagara Falls Fire Department (NFFD) is more important now than ever. The purpose of this applied research project (ARP) is to identify the elements of an attendance management program (AMP) that influences its overall effectiveness and to incorporate these elements into recommendations that may reduce absenteeism in the NFFD. This ARP employed both historical and descriptive research methods to answer the following questions: 1. What is defined as absenteeism? 2. How do other organizations manage employee absenteeism? 3. What pieces of provincial or federal legislation would affect an attendance management policy? 4. What are the costs associated with managing and not managing absenteeism? Background and Significance The City of Niagara Falls is one of 12 lower tier municipalities that operate under the Regional Municipality of Niagara in the province of Ontario. The City of Niagara Falls has a steady population of approximately 85,000 (Statistics Canada, 2006), but welcomes approximately 10 million tourists annually (City of Niagara Falls, 2008). Niagara Falls presents unique challenges to emergency services including: (a) three active rail lines operating through the municipality, (b) the Niagara River and Gorge, (c) the largest number of high rise buildings per capita in Canada, (d) the Rainbow International Bridge and (e) three provincial

8 ATTENDANCE MANAGEMENT PROGRAM 8 highways. The Fire Protection and Prevention Act, 1997, (FPPA) requires municipalities to provide public education, certain components of fire prevention and fire protection services based on the needs and circumstances of the municipality. The City of Niagara Falls ensures compliance with these requirements through the establishment of the NFFD. The NFFD is a line item of the Corporation of the City of Niagara Falls. The department is a composite service consisting of 132 full time and 100 volunteer firefighters. The department operates out of six fire stations and responds to approximately 5000 calls for service each year. The operating budget for the NFFD in 2011 was just under 18 million dollars. The 132 full-time staff are represented by the Niagara Falls Professional Firefighters Association (NFPFFA); and in turn the Ontario Professional Fire Fighters Association (OPFFA) and the International Association of Firefighters (IAFF). The NFFD, like the majority of municipal fire departments in Ontario, has been viewed as a vital public safety service consisting of dedicated, highly skilled individuals who are willing to risk their lives to protect the citizens they serve. This image has placed the NFFD in a dominant position within the municipal governance structure receiving little opposition to their annual budget requests. Recently, though, this trend has started to change in response to increased competition for scarce municipal resources. The current global economic recession has brought the issue of public sector transformation to the fore across federal, provincial and local governments. Structural deficits have hit the mainstream political agenda and are increasing the urgency for reform while constraining the political and financial capacity of governments to respond. In Ontario, the release of the Drummond Report (2012) signaled a period of potential austerity measures and transformational change in the future delivery of public services. The Drummond Report has

9 ATTENDANCE MANAGEMENT PROGRAM 9 suggested eliminating the provincial debt by proposing significant budget cuts to provincial ministries, transfers to municipalities and increasing mechanisms to contain and control employee salary costs. Taxpayers have become more prudent and demanding consumers of public services. Furthermore, recent public scandals, including the criminal investigation of Ornge, Ontario s air ambulance service, has further decreased the capacity of citizens to demonstrate a complacent response to tax increases to fund the delivery off public services. Along with the change in public perception of the delivery of public services, the image of the fire service has also been damaged in recent years; large wage settlements and overtime costs related to employee absenteeism have resulted in concerns expressed about the sustainability of the municipal delivery of fire services (LUMCO, MARCO & OAPSB, 2007). In 2002, the City of Niagara Falls, based on the increased risks posed by the construction of 27 new high rise hotels and large assembly occupancies, increased its minimum suppression staffing complement to 22. The 2012 operating budget for the NFFD, based on this staffing model, has $9,824, budgeted for employee salaries. In addition, the NFFD budgeted $392, for overtime. This amount was based on the 4008 hours of overtime required in 2011 because of employee absenteeism. The line item for overtime in the 2012 operating budget, though, was reduced by $80, because of the financial situation of the municipality. This budget reduction has the potential to impact the ability for NFFD management to back fill positions because of absenteeism, hire additional firefighters for large scale or prolonged events and reduce the ability to cover positions and provide fire fighters enhanced professional development and training opportunities. The NFFD, unlike private sector organizations, face unique managerial challenges. The

10 ATTENDANCE MANAGEMENT PROGRAM 10 practical realities of managing employee absenteeism at the NFFD appear to make it difficult for municipal managers to utilize many of the strategies recommended by both the academic and practitioner literature. NFFD managers, like most public sector managers, appear to be bound by rigid civil service rules and regulations, facing pressures from the public to both keep costs low and provide improved services (Hirschfeld, Leigh & Bedeian, 2002). The flexibility of NFFD managers in terms of rewarding good attendance with tangible rewards and disciplining inappropriate absence is restricted by the language of the collective agreement, resources and jurisprudence. While the economic cost of absenteeism at the NFFD is a problem in itself, it may likely be indicative of more serious organizational problems. The frequency of absenteeism may indicate low employee morale or a low level of employee commitment to the organization. It could also indicate complacency, high employee stress levels or a lack of programs to address such issues; including professional development opportunities or wellness support programs (Bennet, 2002). The frequency of absenteeism at the NFFD may also be the result of an absence culture in the organization, which can perpetuate high absenteeism where the culture tends to be lenient. Absence culture refers to the values, beliefs and norms about attendance in an organization (Gardiner, 1992). Bennett (2002) explains: Individual absence is affected to varying degrees by the collective behaviour of others through the process of employee socialization individuals learn how much absence is expected by co-workers and management. Individuals may experience social pressure to raise or lower their level of personal absence to a norm that has been established in the work group or by organizational culture (p. 431). Issues such as absence culture, low morale and weak employee commitment are all important considerations when studying absenteeism and attempting to generate a workable

11 ATTENDANCE MANAGEMENT PROGRAM 11 solution for the NFFD through the design and implementation of an AMP. Furthermore, identifying and understanding challenges such as employee resistance and restraints imposed through judicial and quasi judicial bodies will be important to help the NFFD in the pursuit of an effective AMP. This ARP is significant to the NFFD in the following ways. First, it supports one of the City of Niagara Falls strategic priorities; financial stability, by ensuring efficient and effect delivery of this core municipal service. Second, the design and implementation of an AMP acknowledges the NFFD s commitment to one of the four City of Niagara Falls corporate values; accountability. Finally, the research can serve as the framework for addressing two of the high priorities identified in the 2009 master fire plan; reducing overtime costs and increasing the efficiency of human resources. This applied research project is related to the Executive Development (ED) course at the National Fire Academy which is intended to prepare the fire service executive for the 21 st century and identifies the leader as one who can anticipate future trends (UFSA, 2011, p. iii). Further, this applied research project relates to the ED course rationale that present and future fire chiefs need to develop effective management, leadership and change management strategies (USFA, 2011, p. ix). The NFFD, like all other public service delivery models in Ontario, faces major demands and challenges as the environment in which it operates becomes increasingly turbulent and uncertain. As service demands increase and the City of Niagara Falls, and by extension the NFFD, is challenged to become more efficient and more effective with fewer resources, managing employee absenteeism represents an important management strategy. Finally, this ARP addresses two of the U.S. Fire Administration s (2010) (USFA) five strategic plan goals. The first being to improve the fire and emergency service s capability for response to and recovery from all hazards (p. 20), the objective being to advocate a culture of

12 ATTENDANCE MANAGEMENT PROGRAM 12 health, fitness and behaviour that enhances emergency responder safety and survival (p.20). The second being to improve the fire and emergency services professional status (p. 21), the objective being to rely on the States and locals to identify, develop and deliver courses that are specific to national consensus standards that meet their certification and credentialing needs (p.21). Effectively managing employee absenteeism and identifying and dealing with the potential root causes will assist the NFFD in managing the decreasing municipal resources allocated to provide this core municipal service. The implementation of an AMP will assist the NFFD in ensuring sufficient resources are available to maintain our minimum fire suppression complement, bring in additional resources for prolonged emergencies and allow for continued professional development and training opportunities. Literature Review A literature review was conducted to correlate documentation related to employee absenteeism in the public service. The literature review is organized thematically into the following categories. The first section provides an overview of absenteeism at the organizational level, with specific attention to labour relations and how the labour-management relationship can affect employee absenteeism. The second category of the literature review deals with attendance issues at the employee level; specifically attempting to explain employee attendance behaviours and strategies for combating the absences of individual employees. The third section provides the legal context related to attendance management issues in Canada and Ontario by reviewing the jurisprudence over the past few decades that has resulted in several principles that are now generally accepted: (a) the distinction between culpable and innocent absenteeism, (b) the protection provided to employees under Human Rights legislation, (c) the protection of employees with respect to benefits entitlement and (d) the prerequisites for establishing unilateral

13 ATTENDANCE MANAGEMENT PROGRAM 13 rules at the workplace. Attendance Management at the Organizational Level. The effect of organized labour organizations on workplace attendance is well documented. A study by Leigh (1982), although somewhat dated, explored the effects a unionized environment has on absenteeism due to illness. Leigh suggested that unions lower absenteeism by providing a monopoly wage, while at the same time raise it by providing generous sick-leave benefits. A model was developed to test this hypothesis; measuring the factors that improve attendance against those that detract from it. The results indicated that the net effect of a unionized work force increased employee absenteeism; members of a union were 29 % more likely to be absent than non-union members. Allen (1984) suggests this result is related to the fact that union members do not have the flexibility in the design of their work schedules as employees not employed in a unionized environment. Chaudhury, Mohammed and Ignace (1992) conducted a similar to study to the one done by Leigh and reported similar results. The study applied statistical methods, such as rank regression, to attempt to isolate workplace factors that may be determinants for absenteeism. Factors that were analyzed included: (a) penalties for absences, (b) part-time versus full-time composition, (c) frequency of overtime, (d) whether the organization was for profit or non-profit, and (e) unionization. The study concluded that the presence of deterrent factors such as penalties could successfully predict absence levels. In addition, the study concluded that a unionized labour environment resulted in an increase in absenteeism. Finally, the study concluded that the determinants tested had no impact on long-term absences. The study concluded that long-term absences are generally considered to be uncontrollable and not subject to employee abuse. While the aforementioned studies indicate that strong penalty factors for absenteeism and

14 ATTENDANCE MANAGEMENT PROGRAM 14 the absence of a unionized work environment will improve attendance, these are unrealistic solutions for not only the majority of the Ontario public sector, but specifically the NFFD. Nonetheless, these studies may prove useful in providing a framework and context in the design phase on an AMP. Deery, Erwin and Iverson (1999) identify the factors affecting the health of the industrial relations (IR) climate in an organization and its impact on the allegiance of the employees to the organization and the union. The article concludes that attendance tends to improve where there is a positive and collaborative labour relations atmosphere. Deery et al. (1999) suggest that strong, as opposed to tepid, union engagement is preferable in the organization because it may facilitate positive organizational outcomes through the collective bargaining process. The study concludes that employees who saw their union as an effective agent in workplace matters had significantly lower levels of absenteeism (p. 549). Moreover, once employees have established positive perceptions about the labour-management relationship, they are more likely to engage in actions and general outcomes that reflect the joint goals of both the union and management (p. 535). The authors further suggest that workplace innovations and initiatives tend to be more successful and have greater benefit when unions are actively involved in their design and implementation. Deery et al. (1999) also introduce the concept of dual allegiance, referring to the state where employees are loyal to both their union and organization. As a matter of principle, union and management goals tend to be divergent; for this reason dual allegiance is thought to be crucial, especially in a hostile work environment. In such cases, employees are forced to choose between their union and their organization; this conflict may lead to undesirable

15 ATTENDANCE MANAGEMENT PROGRAM 15 performance results. Conversely, a cooperative IR climate fosters dual allegiance and has been strongly and consistently correlated with improved performance and attendance on the organization. The authors refer to other studies that suggest dual allegiance has been found to increase when the union plays not just a cooperative, but a protective role in designing and implementing workplace programs (p.536). Deery et al. (1999) also suggest there is a strong relationship between the labour relations environment of an organization and the motivation of the employees to contribute to achieving the goals of the organization: Employees are more motivated to help the organization to become more efficient and productive in circumstances where they (1) view the work environment as fair and satisfying, (2) believe that a cooperative relationship exists between management and the unions and (3) perceive the union to be effective and influential in the workplace (p. 549). In summary, the literature related attendance and labour relations provides key insights. First, unionization heightens absenteeism and discipline measures lower absenteeism. Second, the impact of a unionized workforce on attendance can be managed to some degree by the promoting and contributing to a positive labour relations climate. Finally, fostering dual allegiance in unionized employees is likely to increase the quality and effectiveness of those programs. Attendance Management at the Individual Level. Much of the attendance management literature, particularly from psychology, focuses on perceptions of the individual employee related to their job, motivators and values. While this type of literature has not been heavily drawn upon for this research project, it warrants brief consideration. Hackman and Oldman s job characteristics theory (as cited in Hirschfeld et al., 2002) states:

16 ATTENDANCE MANAGEMENT PROGRAM 16 When employees perceive their jobs to be challenging, as well as intrinsically rewarding, they are more likely to experience higher levels of job satisfaction and workplace motivation. As a consequence, improved employee productivity and decreased absenteeism and turnover should also be more likely (p. 554). However, a 2002 study conducted by Hirschfeld et al. (2002) reported opposite results. A study of 134 public sector clerical employees explored the relationship between job content perceptions (skill, variety and task significance) and performance-reward expectancies with absenteeism. Results indicated that employees who perceived limited performance rewards and who considered their jobs to be higher on the skill spectrum were likely to be absent more frequently. The explanation for this unexpected result is that employees may use absenteeism as a means of compensating for perceived workplace contributions that were not rewarded extrinsically. Not surprisingly, a negative correlation between instrumentality on its own and absenteeism was reported. Unfortunately, instrumentality appears not to be a viable motivator in many of the case studies examined by this report for reasons such as strong unions and limited budgets. A study by Dow and Markham (1981) examined which strategies managers were using to control absenteeism, and which were most effective. The authors conducted a national survey of personnel managers which asked respondents to identify which methods they use to control absenteeism and to evaluate the effectiveness of the techniques that they selected. The most highly rated program was a consistently applied attendance management policy. The authors state that where a consistently applied attendance policy was reported in use, absenteeism was significantly lower than in organizations not reporting such a policy (p.5). The authors also warn about inconsistency in the application of attendance policies: Piecemeal programs are usually troublesome to administer and are not as effective as more comprehensive programs for controlling absenteeism. Without a strong central

17 ATTENDANCE MANAGEMENT PROGRAM 17 system guided by the personnel department, there would never be consistency and equity in the absence program (p. 4). In another study, Bennett (2002) examined the connections between the organizational commitment of employees, attendance management programs and rates of employee absenteeism in local government organizations. These linkages were explored at three organizational levels; HR practitioners, line managers and employees. The concept of organizational commitment was examined at the employee level. The study suggests that employees in local governments tend to view their jobs as a means to an end. The study suggests a lack of internalized commitment to the organization which impacts both performance and attendance. The study reported that the majority of the line managers were not sufficiently familiar with their organization s AMP. In addition, the report suggests most managers were unclear on who in the organization was responsible for attendance management. In many of the organizations examined, attendance was managed inconsistently across the organization and practices varied from one department to another. Bennett (2002) concludes that the keys to controlling employee absenteeism are having a corporation-wide AMP that is developed by management in consultation and cooperation with employees, implemented fully, supported by training for supervisors and facilitated by strong communication between HR and other departments. Bennett emphasizes the importance of involving employees at the design stage of the AMP; suggesting this involvement will foster greater internalized commitment (p. 436). Gardiner (1992) argues that employee absenteeism can be reduced through effective tracking and control mechanisms. Gardiner stressed the importance of a records management system for collecting, aggregating and processing information in relation to the perceived fairness in the application of an AMP. Gardiner explains this below:

18 ATTENDANCE MANAGEMENT PROGRAM 18 Occurrences of sick leave episodes are relatively rare, random events. It is unlikely that line supervisors can readily recall the attendance pattern of any individual employee not subject to special attention due to past history or sick leave abuse. Moreover, the judgment of first line supervisors in evaluating time and attendance information may be coloured by personality considerations which are an inevitable consequence of close association between direct supervisor and employee (p. 300). Gardiner (1992) also expressed concerns regarding the effect of absence culture on employees, suggesting that: Policies alone are insufficient to control sick leave abuse because an absence culture is perpetuated when formal controls are not in place to monitor absenteeism. When absence is measured and monitored, an attendance rather than an absence is encouraged (p. 291). Bennett (2002) similarly reported that high absence levels to be related to the prevailing organizational culture which incorporates acceptance of a set level of absence (p. 341). The theme of turning an absence culture into an attendance culture appears to be an important concept throughout the attendance management literature. The literature review noted a number of studies that emphasized the importance of making employees aware of their own attendance records. Gaudine and Saks (2001) cite several studies including, Harrison and Shaffer (1994) and John (1994), that reported employees do not have accurate perceptions of their own absenteeism or that of their work group. These studies have reported a self-serving bias in which employees underestimate their own absenteeism and overestimate the absenteeism of their co-workers. Gaudine and Saks (2001) confirmed this finding in a study involving more than 300 employees of a Canadian hospital. The study tested the effect of absence feedback intervention (AFI) on employee attendance. Written feedback was provided to employees with above average absenteeism which indicated their own absence rate and that of their occupational group for the previous year. Results showed that the intervention was successful in reducing

19 ATTENDANCE MANAGEMENT PROGRAM 19 absenteeism for employees with above average absence, but not for employees with extreme absence. The overall decrease was relatively small, but given the high cost of absenteeism for organizations and society, even a small reduction in absenteeism can result in significant savings (p.25). AFI is a strategy that is simple, low cost and time efficient. This type of intervention is important because if employees believe their attendance is good when in reality it is actually poor, they will not be motivated to improve their attendance behaviour. Much of the practitioner literature in this field appears to emphasize the role of the supervisor in attendance management. Yorges (2007) explains that in recent years, responsibility for managing attendance has fallen mostly on immediate supervisors. Therefore, supervisors should be well trained in how to address absenteeism, advised on how to conduct return-to-work interviews, and educated in the use of progressive discipline where necessary. Yorges emphasizes that line managers must make sure all employees are fully aware of the organization s attendance policies, be the first point of contact when someone phones in sick and maintain detailed, accurate and up to date records on each employee s attendance. Yorges (2007) also emphasizes the value of the return to work (RTW) interview as a valuable tool for managing short-term absence. RTW interviews welcome the employee back to work, complete any necessary paperwork for absence record-keeping, show that management is committed to absence control, check that the employee is well enough to return to the workplace and update the employee on what he/she has missed. Yorges insists that RTW interviews are not a disciplinary measure. The objective of the RTW interview is to promote an open and supportive culture, to ensure that help is offered when needed and make certain that employees are well enough to return to work. In fact, employees often appreciate the opportunity to explain their absence in cases where it was legitimate. The RTW interview described by Yorges is very

20 ATTENDANCE MANAGEMENT PROGRAM 20 similar in nature to the employee-supervisor meetings required by the AMP s in the case studies examined later in this ARP. In summary, the scholarly and practitioner literature, in concert, point to key elements that could contribute to the success of an AMP. The concepts include: (a) collaborative design, (b) consistency in application, (c) discipline and rewards, and (d) labour relations. The Legal Context Surrounding Attendance Management. As mentioned previously, there are a number of principles that guide arbitrators in their decisions on grievances concerning employee absenteeism. A number of leading Supreme Court decisions and arbitration decisions have been reviewed to highlight the principles established in jurisprudence that may impact the design and implementation of an AMP for the NFFD. The Conference Board of Canada identifies absenteeism as an absence (with or without pay) of an employee from work due to his/her own illness, disability, personal or family responsibility for a period of time of more than a half-day, but less that 52 consecutive weeks (Booth, 1993, p.6). The definition includes family responsibilities such as taking care of children or other family members, but does not include maternity or parental leave, vacations, holidays, bereavement leave or other non-controllable absences. Several judicial decisions (Royal Alexandra Hospital and U.N.A. Local 33, 1990; City of Scarborough Public Utilities Commission and Utility Workers of Canada 1, 1993 & Greater Niagara General Hospital and Ontario Nurses Association, 1995) support this definition of absenteeism. Massey-Ferguson Ltd. v. U.A.W Local 458 (1969, 1972) introduced the concept of innocent absenteeism and compelled employers to distinguish between culpable and innocent absenteeism. The case recognized that there were circumstances beyond the control of the employee that may result in the inability to report to work. The philosophy behind this principle

21 ATTENDANCE MANAGEMENT PROGRAM 21 is that it is unfair to punish an employee for conduct which is beyond his or her control. As a result of the decision employers are required to distinguish between culpable and innocent absenteeism. Culpable absenteeism is identified as absences for which employees should be held responsible because the problems are within the employee s power to prevent or control. Hicks, Morley, Hamilton, Stewart and Storey (1995) identified the four key types of culpable absenteeism as: (a) lateness or leaving early, (b) abuse of leave, (c) failure to notify, and (d) absence without leave. The case law supports the position that if an absenteeism problem is culpable, the employer may invoke disciplinary actions on the employee. In fact Duff (1985) suggests the willful refusal of an employee to report to work when scheduled as the ultimate breach of the employer employee contractual relationship. Finally, Hicks et al. (1995) suggest that the employer consider two elements prior to imposing discipline related to culpable absenteeism: (a) the discipline must reflect the gravity of the offence and (b) the discipline may be modified or increased based on any prior discipline record. The Supreme Court of Canada (SCC) has heard a numerous cases related to attendance management in the work place. As these decisions are binding on all lower courts and quasijudicial bodies, a number cases were reviewed as part of this ARP. McGill University Health Centre v. Syndicat des employes de l Hopital general de Montreal, S.C.C. 4 (2007) started as a grievance filed by the union representing an employee of the McGill University Health Centre who had been terminated for chronic absenteeism. The employee had been absent for two years and despite numerous attempts to return to work and the employer s attempt to accommodate the employee, the employee was unable to return to work. Upon termination, the union filed a grievance, asking the hospital to negotiate a reasonable accommodation for the employee. At the time of the arbitration, the appellant was completely

22 ATTENDANCE MANAGEMENT PROGRAM 22 disabled and her prognosis indeterminable. The arbitrator dismissed the grievance and the Superior Court dismissed the union s application for judicial review. The Court of Appeal reversed the decision of the Superior Court. After hearing the case, the SCC ruled, as the arbitrator had, that the employer could not continue to employ someone who had been declared to be disabled for an indeterminate period, and that automatic termination clauses in a collective agreement are not presumptively discriminatory (para.1). Therefore it found that no discrimination had occurred in this case. While additional details of the case will not be discussed in this research report, it is important to note that this decision established the right of organizations to manage attendance: there is not doubt that an employer may establish bona fide measures to ensure employees regular attendance and that the establishment of a maximum period of time for absences is thus a form of negotiated accommodation (McGill University Health Centre v. Syndicat des employes de l Hopital general de Montreal, S.C.C. 4, 2007, para.18). The decision also established that employees, in cases involving extremely excessive absenteeism, may be justifiably terminated for non-culpable or innocent absenteeism: Non-culpable absenteeism, including the failure to achieve a reasonable degree of attendance because of illness, is accepted arbitral jurisprudence as a just cause for dismissal (para. 62). A lesson that can be taken from this decision is that the employees who do not fulfill the fundamental contract of employment contract that is, work for remuneration can be justly terminated, and that termination is not automatically deemed discriminatory. Similarly, Massey-Ferguson Industries Ltd. v. U.A.W Local 458, (1969) established a two-part test that employers may terminate an employee for innocent absenteeism. I conclude from the cases that in order to justify a discharge the company must establish: (a) undue

23 ATTENDANCE MANAGEMENT PROGRAM 23 absenteeism in the grievor s past record; and (b) that the grievor is incapable of regular attendance (p. 348). Hydro- Quebec v. SCFP-FTQ, S.C.C. 43 (2008) began when a unionized employee of Hydro Quebec filed a grievance alleging that her dismissal was not justified. Hydro Quebec had terminated the employee because of chronic absenteeism. The employee had been absent 960 days over an 8 year period due to a myriad of physical and psychological medical problems. The employer had made many attempts to accommodate the employee during this period. The medical prognosis at the time the case went to arbitration suggested the likelihood of the employee returning to regular attendance was unlikely. The arbitrator dismissed the grievance and the Superior Court dismissed the motion for judicial review of the arbitrator s decision. The matter ended up before the SCC; focusing on the principles of accommodation and the fundamental employment contract: the Court must consider the interaction between the employer s duty to accommodate a sick employee and the employee s duty to do his or her work (para. 1). In the judgment it was stated that the employer does have a duty, if it can do so without undue hardship, to arrange the employee s workplace or duties to enable the employee to do his or her work, but the employer does not have a duty to change working conditions in a fundamental way (Hydro- Quebec v. SCFP-FTQ, S.C.C. 43, 2008, para.15). It was stated that the employer s duty to accommodate ends when the employee can no longer fulfill his or her part of the basic employment contract into the foreseeable future, despite reasonable accommodations. In this case it was found that the arbitrator s original decision had been correct. The employer had considered all reasonably possible accommodation measures when it dismissed the complainant (para. 78).

24 ATTENDANCE MANAGEMENT PROGRAM 24 The SCC decisions outline a number of principles that have to be considered in the design and implementation of an AMP. First, employers do have the right to manage employee attendance. Second, employees have an obligation to fulfill the basic employment contract of work in exchange for remuneration. Third, employers are required to distinguish, with regards to discipline, between culpable and innocent absenteeism. Finally, the employer has a duty to accommodate an employee until it becomes self evident that the employee will not recover and resume regular attendance even if provided accommodation. The two significant arbitration cases that were reviewed: (a) the City of London (2009) and (b) the City of Hamilton (2009) will only be discussed briefly in this section as they are examined in more detail in the case studies which follow. It is important to note, though, that arbitration cases, unlike the cases from the SCC discussed are not binding on future arbitration cases; they simply serve as cases to be referenced where similar grievance arise. The City of Hamilton AMP was grieved by the union representing the city s paramedics, as they alleged it was unreasonable and violated provisions of the collective agreement (Whitaker, 2009). The union considered the AMP s retroactive application unfair; that the threshold number of absences required triggering a meeting with a manager was arbitrary and unfair given the nature of paramedic work and that the program did not allow for sufficient discretion to be exercised by managers. The union argued that the AMP did not provide real support to employees who needed assistance to improve their attendance. The grievance was allowed in part, as it was found that the retroactive application was indeed unfair (p.6), and that the language of the AMP should more clearly emphasize the discretion afforded to supervisors in individual cases. The AMP, however, was not found to be unsupportive, nor was the number of days absent selected as the threshold to require a meeting found to be arbitrary or

25 ATTENDANCE MANAGEMENT PROGRAM 25 unfair. The City of London AMP was grieved by CUPE 101. The grievance alleged that the AMP violated the collective agreement and was generally unreasonable. The union specifically took issue with the monitoring periods and the flag system, which they argued to be unfair and arbitrary (Rayner, 2009). The union also suggested the language of the AMP to be disciplinary and intimidating. The arbitrator concluded that while the AMP did not violate the collective agreement the done of the document was unfriendly and did indeed cross the line from proper encouragement to intimidation (p.16). The monitoring and flag periods were also found to be unreasonable and arbitrary (p.17). For these reasons the AMP was struck down in its entirety. The Ontario Human Rights Code (Code) (1990) prohibits discrimination on the basis of the following prohibited grounds: race, sex, age, creed, disability, colour, ethnic origin, ancestry, citizenship, marital status, record of offence, place of origin, sexual orientation and family status (s. 10). The relevance to employee absenteeism is that the Code prohibits discrimination in employment on the basis of a number of the prohibited grounds; most frequently cited in the jurisprudence is disability. The definition of the term disability in the Code is extremely broad and includes any physical disability, mental disorder or impairment and any injury or disability recognized under the Workplace Safety and Insurance Act (1997). The first legal principle related to discrimination and disability is the concept of a bona fide occupational test. The courts have permitted employers to discriminate on the basis of a disability, provided that the discrimination can be justified based on the following three part test, frequently referred to as the bona fide occupational test: (a) the employer adopted the rule or standard for a reason rationally connected to the job performance requirements, (b) the employer

26 ATTENDANCE MANAGEMENT PROGRAM 26 adopted the rule or standard in a good faith belief that it was job related and (c) the rule or standard is reasonably necessary to accomplishing the tasks related to the job (Saskatchewan [Human Rights Commission] v. Saskatoon [City], S.C.C. 2, 1989). A second legal principle related to discrimination and disability, confirmed by the SCC, is the duty imposed on employers to accommodate employees. British Columbia Public Service Employee Relations Commission v. BCGSEU, S.C.C. 3 (1999) emphasized the importance of building the principle of accommodation into all workplace standards; the employer must demonstrate that it is impossible to accommodate individual employees without imposing an undue hardship on the employer. In addition, the decision made it clear that both the employer and the employee have a duty to participate in the accommodation process; failing which to do so would result in legal ramifications for either party. Finally, Alberta Human Rights Commission v. Central Alberta Dairy Pool, S.C.C. 2 (1990) identified the relevant factors employers shall consider in the determination of the duty to accommodate: (a) financial cost, (b) problems of morale among co-workers, (c) the interchangeability and flexibility of the workforce and facilities and (d) the size of the employer s operation. The concept of benefits entitlement arises from the decision of employers to establish income replacement plans that protect employees from economic hardship as a result of absenteeism. The question of whether an employer assumes the liability of becoming a direct insurer of their employees is evaluated on a case by case basis; the language of the collective agreement between the employer and employee and the specific insurance policies determine the extent of an employer s liability. This principle is outlined in the decision of the British Columbia Teachers Federation. This case involved an employee who was terminated for innocent absenteeism while receiving

27 ATTENDANCE MANAGEMENT PROGRAM 27 benefits under a disability plan. The arbitrator ordered the employee reinstated because this benefit, negotiated between the employer and the employee s union, flowed directly from the employee s inability to work. In the decision the arbitrator stated that it would simply be inconsistent with the existence of such benefits if discharge were permitted on the very grounds that those benefits were provided (Laing, 1997, p.225). A second consideration regarding benefits, specifically in Ontario, relates to the amendments to the Ontario Employment Standards Act (ESA) (2000). Among the amendments to the ESA was the introduction of benefit entitlements granting employees statutory rights to personal emergency leave and family medical leave. The personal emergency leave entitlement allows employees the right to 10 unpaid days of absence each year to deal with an employee s own emergency or an urgent matter of illness of a family member. Similarly, the family medical leave entitles the employee up to eight weeks of unpaid leave to care for a family member who has a serious medical condition or is near imminent death. The ESA outlines two important considerations for employers. First, the employee is not required to request the approval of the employer; simply notify the employer. Second, the ESA prohibits any type of reprisal against the employee should he or she choose to exercise these rights. Natrel Inc. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Teamsters Local Union (2004) case supports the principles upon which the ESA amendments were founded: Where the use of personal emergency leave is the factor which pushes the employee over a threshold and into an attendance management program, or maintains the employee in the program, it is my view that there will have been a breach of Section 74. An employee ought not be dissuaded, even by non-disciplinary pressures, to forego a statutory right to emergency leave (p.3). The final legal principle to be discussed is the right of the employer to unilaterally impose rules and policies on employees. Although the management rights clause in collective

28 ATTENDANCE MANAGEMENT PROGRAM 28 agreements is the primary tool employers have in unionized environments to ensure the organization operates efficiently and effectively, a number of legal decisions have restricted the manner in which the employer exercises these rights. The decision of an employer to introduce an AMP, for example, would be subject to the reasonableness test applied to employers in their decision to impose a new policy or rule regarding employee absenteeism. Lumber & Sawmill Workers Union Local 2537 and KVP Co. (1965) outlines the prerequisites required for imposing such a program or policy: (a) it must be consistent with the collective agreement, (b) it must be reasonable, (c) it must be clear and unequivocal, (d) it must be brought to the attention of the employees affected prior to it s implementation, (e) employees must be notified that a breach of the program could result in discipline and (f) the program must be consistently enforced from inception (para.85). Domglas Inc. and Aluminum Brick & Glass Workers Union Local 2036 (1988) substantiates the duty of an AMP to meet the test of reasonableness: I am satisfied that the program in question is unreasonable both in content and in application. In my view, the program can be characterized as mechanical in nature in its total disregard for the reason of absence, the nature and duration of the claimed illness and personal circumstances of individual employees such as seniority and record of service (p.11). Finally, Champion Road Machinery Ltd. and Gearco Ltd. and I.A.M. Lodge 1863 (1992) confirms the expectations of the judiciary regarding communication and engagement with the employees prior to the implementation of an AMP. The Commission agrees that any change in the rules and regulations to be observed by the employees, will be discussed with the Union (p.18). In summary, the review of the jurisprudence conducted for this research project has identified a number of principles that are relevant for organizations, including the NFFD, in the

29 ATTENDANCE MANAGEMENT PROGRAM 29 design and implementation of an AMP. In general, the following suggestions should be incorporated to increase the likelihood of an effective AMP: (a) ensure consistency with the existing collective agreement, (b) distinguish between culpable and innocent absenteeism, (c) ensure the content and implementation of the AMP is reasonable and communicated to the employees and union and, (d) ensure, prior to the imposition of any discipline, consideration is given to the provisions of the Ontario Human Rights Code and the Ontario Employment Standards Act. Procedures The information for this research project has been collected from a variety of sources including a literature review, short questionnaire and loosely structured confidential interviews. The literature review consisted of an analysis of relevant case law and arbitration decisions, related to AMP s and employee absenteeism from across the country. The information was obtained from the resource centre at the Ontario Fire College, the Ontario Association of Fire Chiefs (OAFC), Canadian Association of Fire Chiefs (CAFC), the Association of Municipalities of Ontario (AMO) and the law library at the University of Western Ontario. In addition, the literature review consisted of a review of academic articles accessed through the research library at Brock University and the University of Western Ontario. Finally, the literature review consisted of reviewing municipal documents accessed through the Freedom of Information Protection and Privacy Act (FIPPA). Information for this research project was also collected from a short questionnaire (Appendix A) and loosely structured confidential interviews. The questionnaire was sent electronically in February to the twenty largest municipalities in Ontario, as preliminary research discussions with members of the OAFC indicated that smaller municipalities were less likely to