An employee is still eligible for an employer’s attendance bonus even if absent on emergency leave, according to the Ontario Arbitration Board
An employee is still eligible for an employer’s attendance bonus even if absent on emergency leave, the Ontario Arbitration Board has ruled.
Fleetwood Canada Ltd. provided an attendance bonus to all employees who were on the job for 100 per cent of the workweek. There were 11 specific absences (such as bereavement, vacation and religious holiday) which did not disqualify workers from the bonus. But emergency leave under Ontario’s Employment Standards Act, 2000, is not among them. An employee taking emergency leave was considered absent and was not entitled to the bonus that week, and the bonus pot was distributed among eligible workers.
The workers’ union filed a grievance. It claimed the company’s failure to treat emergency leave as an allowable absence violated the act.
Under the act, a company employing more than 50 workers must grant an employee a leave of absence (without pay) for up to 10 days in a calendar year. Section 74(1) states the company may not “dismiss or otherwise penalize an employee” who exercises rights under the act. The union said the company’s policy is a disincentive for an employee taking an emergency leave, which amounts to a penalty under s. 74(1).
The company said the attendance plan was a work-driven benefit. Therefore, there was no entitlement to the benefit until the employee had worked the entire week. There was no accruing the benefit during the week – the entitlement was triggered only if one had perfect attendance. Human rights rulings have repeatedly ruled that disentitlement to a work-driven benefit is neither direct nor indirect discrimination.
Fleetwood employees are still entitled to take emergency leave. The bonus plan does not take away any of their rights. It is in keeping with laws which permit employers to link benefits to time actually worked, the company argued.
The Ontario Arbitration Board agreed with the union. The union did not ask that money be paid for days not worked. It didn’t want workers to be disqualified from the bonus for taking emergency leave. This distinguished the case from discrimination or unequal treatment cases. The only real question was whether a penalty was being imposed when a worker took an emergency leave day, the board said, and clearly the answer was yes.
The bonus plan was designed to discourage absences other than for the allowed exceptions. A worker on emergency leave would suffer a negative consequence by being disqualified from the bonus. So the scheme discouraged employees from being absent due to emergency leave. But emergency leave is a statutory right and s. 74(1) ensures an employee taking one doesn’t suffer any reprisal. An employee taking emergency leave should be eligible for the bonus, calculated on the basis of the hours actually worked. In that way an employee would be treated in exactly the same way as other employees absent due to one of the existing 11 exceptions, the board said.
For more information see:
• Fleetwood Canada Ltd. v. U.N.I.T.E. - H.E.R.E., Local 1381, 2005 CarswellOnt 4170, 138 L.A.C. (4th) 194 (Ont. Arb. Bd.)
Fleetwood Canada Ltd. provided an attendance bonus to all employees who were on the job for 100 per cent of the workweek. There were 11 specific absences (such as bereavement, vacation and religious holiday) which did not disqualify workers from the bonus. But emergency leave under Ontario’s Employment Standards Act, 2000, is not among them. An employee taking emergency leave was considered absent and was not entitled to the bonus that week, and the bonus pot was distributed among eligible workers.
The workers’ union filed a grievance. It claimed the company’s failure to treat emergency leave as an allowable absence violated the act.
Under the act, a company employing more than 50 workers must grant an employee a leave of absence (without pay) for up to 10 days in a calendar year. Section 74(1) states the company may not “dismiss or otherwise penalize an employee” who exercises rights under the act. The union said the company’s policy is a disincentive for an employee taking an emergency leave, which amounts to a penalty under s. 74(1).
The company said the attendance plan was a work-driven benefit. Therefore, there was no entitlement to the benefit until the employee had worked the entire week. There was no accruing the benefit during the week – the entitlement was triggered only if one had perfect attendance. Human rights rulings have repeatedly ruled that disentitlement to a work-driven benefit is neither direct nor indirect discrimination.
Fleetwood employees are still entitled to take emergency leave. The bonus plan does not take away any of their rights. It is in keeping with laws which permit employers to link benefits to time actually worked, the company argued.
The Ontario Arbitration Board agreed with the union. The union did not ask that money be paid for days not worked. It didn’t want workers to be disqualified from the bonus for taking emergency leave. This distinguished the case from discrimination or unequal treatment cases. The only real question was whether a penalty was being imposed when a worker took an emergency leave day, the board said, and clearly the answer was yes.
The bonus plan was designed to discourage absences other than for the allowed exceptions. A worker on emergency leave would suffer a negative consequence by being disqualified from the bonus. So the scheme discouraged employees from being absent due to emergency leave. But emergency leave is a statutory right and s. 74(1) ensures an employee taking one doesn’t suffer any reprisal. An employee taking emergency leave should be eligible for the bonus, calculated on the basis of the hours actually worked. In that way an employee would be treated in exactly the same way as other employees absent due to one of the existing 11 exceptions, the board said.
For more information see:
• Fleetwood Canada Ltd. v. U.N.I.T.E. - H.E.R.E., Local 1381, 2005 CarswellOnt 4170, 138 L.A.C. (4th) 194 (Ont. Arb. Bd.)
