Bodnar v. Treasury Board (Correctional Service of Canada)
2016 PSLREB 71
- Before: Margaret T.A. Shannon
- Decision Rendered: August 9, 2016
- Original Language: English
An application for judicial review is pending before the Federal Court of Appeal (A-298-16)
Labour relations – Grievances – Discrimination based on family status and disability – Management rights – Board’s jurisdiction – Bona fide occupational requirement – Pain and suffering and special compensation
The grievors filed grievances alleging that the implementation of the employer’s National Attendance Management Policy (“the Policy”) was discriminatory on the bases of family status and disability – the employer raised a preliminary objection that the Board had no inherent jurisdiction to review its exercise of management rights unless the impugned policy was expressly incorporated into the collective agreement – the Board ruled that s. 209 of the Public Service Labour Relations Act enabled it to determine whether the Policy violated the collective agreement, including its no-discrimination article – the Policy singled out employees who obtained family status or disability leave and subjected them to an accelerated inclusion into the Policy, which could have adversely affected their continued employment and could have possibly included termination – the Board found that the Policy was discriminatory on its face as it failed to distinguish between culpable and non-culpable absences when assessing the amount of leave an employee took compared to a threshold that was calculated based on leave usage by occupational group nationally and that was not evaluated on a case-by-case basis – the employer was unable to establish a bona fide occupational requirement defence as it could not prove that accommodating the grievors would impose undue hardship on it based on health, safety, and cost – the Board found that the employer wilfully and recklessly disregarded its obligations under the collective agreement and the Canadian Human Rights Act and awarded the grievors special compensation pursuant to s. 53(3) of that Act as well as damages for pain and suffering under s. 53(2)(e).