Visit uncharted.ca!
  • authored by remote viewer
  • published Thu, Mar 14, 2002

Absenteeism - Culpable or Non-Culpable

I thought I would start this thread to pick up on a discussion that was developing in another thread about innocent absenteeism.

Forum contributor about unions was asking about the differences between culpable and non-culpable absenteeism and whether or not unions do anything to educate their members about these.

In a very general sense:

Culpable absenteeism means "blameworthy" absenteeism, or absenteeism that was within the workers' ability to control. Examples of this could be things like taking time off to do personal errands, go shopping, go fishin', being late because you can't get up on time and things of that order. It can also mean falsifying sick claims or calling in sick when you're really...gone fishin' or otherwise not sick.

Non-culpable or innocent absenteeism is absenteeism that is not within the workers' control. Illness and injury are the most common examples of this kind of absenteeism.

While discipline can be, and often is, imposed for culpable absenteeism, things are not quite so simple for the non-culpable variety.

This pdf. from IWA Canada provides a lot of good information about innocent absenteeism and the state of the law in Canada in terms of what employers can and can't do. (Yes, there are a few unions out there that are educating their members in this area! IWA-Canada is an independent that broke away from its US parent some years ago.)

This is a summary of an arbitration decision involving OPSEU in a case where a worker was terminated for innocent absenteeism. The worker lost the case but the summary gives you a good idea of why. The OPSEU site also has an excellent database of arbitration decisions.

There's some good information at this link as well. This is a web site of a law firm that represents employers - gives you some insight into the kind of advice that employers are getting from their legal advisers.

And have a look at this:

This is from the web site of Koskie and Minsky, a law firm that represents unions. I believe that the UFCW is one of their clients.

quote:


UNIONS AND DISCRIMINATION: AN UPDATE

The law of disability has recently undergone significant changes, led by the Supreme Court of Canada in decisions such as Meorin. To bring its policies in line with the changes, the Ontario Human Rights Commission has released a new 'Policy and Guidelines on Disability and the Duty to Accommodate' (available from the OHRC or online at http://www.ohrc.on.ca). The Policy indicates that the Commission will be taking a proactive approach to discrimination and accommodation in workplace matters and is essential reading for Unions.

As the SCC decision Renaud, [1992] 2 S.C.R. 970, made clear, discrimination in the workplace is an issue that Unions must be aware of and strive to prevent. While some forms of discrimination are relatively easy to identify (e.g., discipline based on gender or race), discrimination on the basis of disability and the obligations under the duty to accommodate are often harder to recognize and deal with properly. Unions may be liable for discrimination against bargaining unit members, even if acting in good faith but in a way which lacks sensitivity.

To highlight the importance of a thorough awareness of these issues, below we review two decisions of interest regarding the responsibilities of trade unions when dealing with disabled and vulnerable members.

In Ferris v. OTEU, Loc. 15 [1999] B.C.H.R.T.D. No. 15, the B.C. Human Rights Tribunal found that the Union had discriminated against a bargaining unit member who was as a pre-operative transgendered woman on the basis of her sex and disability. A co-worker complained that 'a man' was using a women's washroom and, eventually, the employee complained to the BC Human Rights Tribunal about how the Union handled that complaint. The Tribunal found that the Union mismanaged the whole issue; it failed to advise the Complainant of the complaint, failed to inform her of a meeting, and generally failed to treat the issue with seriousness and respect. The Tribunal ultimately concluded that because the Union did not represent the Complainant in the manner that it would have any other employee, simply because she was transgendered, it had discriminated against her. The Tribunal ordered the Union to pay the Complainant damages for lost wages and a further $5000 for injury to dignity, feelings and self-respect. This case illustrates that transgendered workers are particularly vulnerable to discrimination and harassment in the workplace and that Unions have a legal obligation to protect them, and to do so sensitively.

In K.H v. CEP, Loc. 1-S (1997) 98 CLLC 220-020, the Saskatchewan Labour Relations Board found that the Union failed to meets its duty of fair representation when it handled a grievance regarding a mentally ill member. The grievor was disciplined for a number of incidents including his use of loud and abusive language to co-workers, use of threatening behaviour, and unauthorized absences, all conduct related to his illness. The Board found that, although the grievance was processed by experienced and conscientious union representatives, and handled in exactly the same manner as other grievances were, the Union failed in its DFR as it did not take sufficient account of the grievor's disability by adopting a different approach to the handling of his grievances. The Board concluded that this failure resulted in the Union discriminating against the grievor. Importantly, the Board noted that the Union should have questioned whether the normal progressive discipline was even applicable to an individual with a mental disability, and commented negatively upon the Union's acceptance of the employer's demand for a third party medical examination without considering the concerns of the grievor and his doctor. Clearly the duty to accommodate does not only arise in assessing appropriate discipline. Rather, awareness of the disability must inform and shape how a Union interacts with and represents its members.


So as we can see: unions have obligations to disabled workers too.

Anyway, thanks for the compliment . I'm doin' what I can. Are there other areas about workers' legal rights that you think would be good posting some info about? I'm not a lawyer [DISCLAIMER: RV is not a lawyer ] but like most working people, I know a thing or two and enjoy sharing.

  • posted by lefkenny
  • Thu, Mar 14, 2002 3:13pm

Some great stuff there REMOTE VIEWER. It is great to hear that some unions share their knowledge with union members. I hope it catches on with other union and develops further member education. I would also like to see unions have one big education centre in every province that would all contibute to the uniform eduction of members. As not all unions put labour law on their sites, not all unions even make an attemt to teach members at all never mind in depth. So here is my next question.

DUTY OF FAIR REPRESENTATION? What is it, how does it apply to members who want to grieve? What is the law?

ABOUT UNIONS

  • posted by lefkenny
  • Thu, Mar 14, 2002 7:52pm

quote:


One point to remember there is culpable abesnteeism and non-culpable absenteeism. As well, all illnesses are not covered by the human rights codes. For example kidney disease is while influenza isn't.

That being said, only the most callous union employer with the most incompetent of unions could get away with firing an employee for being away several times a year. I think the national average is about nine absences per year.

If an employee had an illness and if that employee could provide no medical prognosis stating that the employee could in the foreseeable future attend work on a regular basis, then the employer may be able to terminate that employee. However, such termination would be non-disciplinary.

However, if an employee was off for a year and the prognosis was that the employee would recover in six more months, then the employer would have to wait for the recovery.

Absenteeism affecting continued employment is a complex matter. However, for the type of stuff that is claimed to be from the 1000a contract, I'd say the union is odd for agreeing to that language and if it has the fortitude, it could explain to its members that the company is in left field if it thinks it can use it to jack the members around.


BY WEISER

Odd is a rather gentle term for unions agreeing to weak contract. However such actions by unions seem popular and really simplifies the unions duty of fair representation to its members. In my old Cupe local a Manitoba Rep sat at the head of our executive table and proceeded to tell us that he had read our contract and told us in his opinion that it was a very good contract. In reality it was a very weak contract in comparison to other contracts in the same sector. The popular phrase by the Cupe Rep of the local he told most everyone was "Oh,we can not win this one". What type of unions allow memebers to sign weak contracts in the first place? What type of Union Rep tells members that they can not file a grievance and or that they can not win even? Yes the status quo is alive and well in Cupe Manitoba. Web sites like this are needed to implement change in all unions including CUPE.
TAKING UNIONS TO THE LABOUR BOARD SHOULD NOT HAVE TO BE THE RECOURSE OF MEMBERS FOR BAD REPRESENTTION.

ABOUT UNIONS

  • posted by lefkenny
  • Fri, Mar 15, 2002 12:47pm

DOES ANYONE KNOW IF THERE ARE GROUPS THAT MEMBERS CAN BELONG TO TO OBTAIN INFORMATION ON ARBITRATION DECISIONS IN CANADA DEALING WITH UNION GRIEVANCE ISSUES?

ABOUT UNIONS

  • posted by remote viewer
  • Fri, Mar 15, 2002 1:27pm

It's not easy getting these online as most publishers that make them available do so for a fee.

There is, however, a series of publications called "Labour Arbitration Cases" published by Canada Law Book that you may be able to find in the reference section of your public library. These books are published on a regular basis and contain a wide range of arbitration decisions (you'll find something on every possible subject). A new one comes out every few months (maybe more frequently) so you're getting up to date stuff.

Not all libraries have them but if you are in an urban center, larger branches, reference libraries or libraries at a university or community college should have them.

You may also want to look for a publication called "Canadian Labour Arbitration" by Brown and Beatty. This gives you an overview of the state of the Canadian case law on a wide range of subjects as well. Again, larger libraries should have a copy in their reference section.

BTW, I'm going to get to your question about DFR later. It's a depressing subject from a union member's perspective, so I've been putting off getting to it. But check back later today or over the weekend and you'll find something.

© 2017 Members for Democracy