COURT FILE NO.: 234/02

DATE: 20030123

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BLAIR R.S.J., LANE AND CAPUTO JJ.

B E T W E E N:

THE CORPORATION OF THE CITY OF HAMILTON

Applicant

• and -

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 5167 and PAUL HAEFLING, ARBITRATOR

Respondents

William J. Hayter, for the Applicant

Steven Barrett, for the Respondent, Canadian Union of Public Employees, Local 5167

HEARD: January 23, 2003

LANE J.: (Orally)

1The City of Hamilton applies for judicial review of the decision of arbitrator Paul Haefling reinstating employee, Michael Kushner. The background is that the City established an attendance management system to manage absenteeism amongst its employees. The system works on a rolling 12 month period. If within any given 12 months the employee's absences reach a threshhold of four absences or seven total days, an interview is held. A second breach within a further 12 months leads to a second level of interview and so on. Ultimately there is a Level 7 at which the employee meets with the Director of Labour Relations and a decision is made whether the employee is able to meet the necessary standards of attendance. If the Director feels the employee is not likely to do so, the employee is terminated.

2The grievor, Michael Kushner, was terminated at a Level 7 meeting in July of 2001, as a result of what is called "excessive innocent absenteeism". He filed a grievance under the Collective Agreement and Mr. Haefling was appointed by the Minister of Labour under the arbitration provisions of s.49 of the Labour Relations Act. The arbitrator upheld the grievance and ordered the City to reinstate the grievor.

3In reviewing the arbitrator's decision we apply the standard appropriate to Collective Agreement issues, that is to say patent unreasonableness. See Pezim v. British Columbia, [1994] 2 S.C.R. 557. It is submitted that there is also an issue of interpretation of the Ontario Human Rights Code and that the Court ought to review that portion of the decision on the standard of correctness. For the purpose of today, we accept that standard but we point out that the Labour Relations Act expressly directs arbitrators to have regard to the Human Rights legislation and as a result it may well be that such legislation falls within the decision of Toronto Board of Education and O.S.S.T.F. District 15, [1997] 1 S.C.R. 487, where the correctness standard is subject to some relaxation where the arbitrator is dealing with legislation that is intimately connected with or encountered frequently in the normal course of labour arbitrations. It is not necessary for the purpose of today for us to make this distinction.

4As noted, Mr. Kushner was away from work for a sufficient period to trigger a Level 7 meeting. The absences which triggered that meeting included a three and one-half day absence due to a compensable workplace injury to his eye. The arbitrator held that by reason of the inclusion of that period of time the termination was a breach of the Human Rights Code. He summarized his finding to this effect at p. 13 of his Reasons as follows:

"It is my decision that the grievor, Michael Kushner, is to be reinstated to his employment since, inescapably, as I have found, his termination at AMS Level 7 was prohibited by statute and impermissible where, as here, a part of the reason for the termination decision included a period of absence relating to a recognized, compensable work accident injury."

5In his submissions to us, counsel for the applicant focused considerable attention upon an earlier passage in the Reasons found at the bottom of p. 10 and the top of p.11 where the arbitrator, after referring to the obligation of the employer to accommodate Mr. Kushner continued:

"In particular, WSIB absences must be discounted so as not to give rise to any constructive or adverse affect discrimination. Of course, the simplest approach would be for the Employer to discount any and all potential adverse outcomes by omitting WSIB absences that are now counted in AMS as "manageable absences". However, I conclude here that it may not, in any individual case like this one, rely upon or apply the program rules such that a statutorily protected absence at Level 7 would be part of the grounds relied upon for termination."

6We do not read this passage or the decision as a whole as ruling that no absence due to a workplace injury can ever be relied on to trigger a Level 7 meeting or as grounds for termination. Rather, we read this passage as follows:

"…the employer may not in any individual case like this one rely upon or apply the program rules such that a disability absence that can be accommodated without undue hardship would be part of the grounds relied upon for termination."

In other words, the protection of the statute extends to require the accommodation to the point of undue hardship.

7Mr. Hayter for the applicant did not dispute this reading of this passage in principle, however, he contended that in this particular case the arbitrator did not actually apply this view. We disagree with that submission. In our view, the arbitrator did have regard to the very principle which is inherent in the passage as we have revised it.

8No evidence was before the arbitrator to show any hardship for the employer in Mr. Kushner's case by accommodating him by excluding the absence from the calculation.

9The arbitrator also addressed the second part of the Director's decision, namely, that the Director could not see any prognosis for a better history of attendance in the future. The arbitrator found that the exchanges that took place between Mr. Kushner and the Director at the Level 7 meeting were not evidence sufficient to support any inference that Mr. Kushner could not attend work regularly in the future. As a question of fact, it is for the arbitrator and is not for us to interfere.

10In the result then, the application for judicial review is dismissed.

BLAIR R.S.J.

11The record will read as follows: "For oral reasons delivered by Lane J., the application is dismissed. The respondent is entitled to its costs of the application fixed at $3,500, as agreed between counsel."

BLAIR R.S.J.

LANE J.

CAPUTO J.

Date of Reasons for Judgment: January 23, 2003

COURT FILE NO.: 234/02

DATE: 20030123

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT