CUPE, Local 145 v. William Osler Health Centre, 2026 CanLII 40774 (ON LA)
Andrew Tremayne, Arbitrator — April 14, 2026
CUPE grieved Step 4 Attendance Support Program letters that warned employees their employment could be terminated if attendance did not improve. The arbitrator upheld the Hospital’s preliminary objections and dismissed the grievances, finding the letters were not disciplinary and that the Union could not expand the grievances into a challenge to absence coding.
Background
The Hospital’s Attendance Support Program was designed to identify employees having difficulty maintaining regular attendance and to support improvement. The policy excluded WSIB absences, Occupational Health-substantiated absences, legally protected absences, and culpable absenteeism.
The Step 4 letters told employees they had reached the final stage of the program and that the Hospital would consider the employment contract frustrated and terminate employment if attendance did not improve. CUPE filed grievances alleging unjust discipline.
The Hospital raised two preliminary objections. First, it argued that the Union had not established a prima facie case that the letters were disciplinary. Second, it argued that the Union was improperly trying to expand the grievances into a challenge to how absences were coded and counted under the ASP.
Decision
The arbitrator accepted both objections. On the discipline issue, he emphasized that the expectation that employers are to deal with innocent absenteeism in a non-disciplinary manner sits in tension with the obligation to warn employees that their employment may be in jeopardy if innocent absenteeism does not improve.
The Step 4 letters were forward-looking and did not suspend, financially penalize, or otherwise discipline the grievors. The parties stipulated that none of the grievors had been suspended or suffered financial loss, and that any eventual termination would not be automatic or based on protected absences.
The arbitrator held that the letters fell within the category of attendance-management communications found not to be disciplinary. The letters warned of serious consequences, but that was part of the notice function required in innocent absenteeism cases.
On the scope issue, the arbitrator found that the grievances were about discipline, not absence coding or placement in the ASP. Nothing in the grievances or the Step 2 grievance meeting reasonably alerted the Hospital that the Union was grieving absence characterization as a separate issue. That issue was therefore an improper expansion and was not arbitrable.