Niagara Health System v. ONA 

A 21-year nurse was terminated under Niagara Health’s attendance management program — but the hospital never told her the program had been re-launched, and may have miscounted the absences that triggered her dismissal.

Background

A registered nurse with approximately 21 years of employment at Niagara Health System was dismissed for excessive absenteeism after progressing through the hospital’s Attendance Support Program (ASP). The ASP has been in place since at least 2015 and is designed to promote and maintain regular attendance at work while providing support to employees. The program has five stages of progression for non-culpable absenteeism (absenteeism that is not the employee’s fault), with specific thresholds that trigger movement to the next stage.

The grievor progressed through the ASP over several years. The program was paused during the COVID-19 pandemic in March 2020 and resumed in September 2022. The hospital sent a letter dated August 29, 2022, advising employees of their status in the ASP. There was a factual dispute about whether the grievor received this letter: the hospital claimed it sent the letter advising the grievor that she was in Stage 4, but the grievor testified she did not receive the letter and was unaware the ASP had been re-launched or that she was in the final stage.

In the final phase of the ASP, the grievor’s absenteeism exceeded the threshold (3 occurrences or 56.25 hours in a four-month period), and her employment was terminated on March 22, 2023. She was paid termination and severance pay of $51,210.77.

The Attendance Support Program

The ASP has five stages of progression for non-culpable absenteeism. Employees enter and progress through the stages if their absenteeism meets the stipulated thresholds. The program specifically excludes absences related to chronic conditions and WSIB-covered injuries. With respect to chronic conditions, an employee can request that specific absences be exempted by contacting the Occupational Health Department. The exemption is reviewed annually.

The ASP stipulates that it is applied in accordance with the collective agreement. Absences identified under Article 12.15 of the collective agreement, including a catastrophic event, are also excluded from the ASP.

ASP Thresholds and the Union’s Position

The ASP thresholds were not static throughout the grievor’s tenure in the program. Prior to April 1, 2019, an employee progressed to the next phase if they were absent for 90 hours or 4 occurrences in a six-month period. After April 1, 2019, the thresholds were changed to be more stringent: an employee would progress to the next phase if they were absent for 37.5 hours or 3 occurrences in a four-month period. Importantly, the Ontario Nurses’ Association did not raise any issues about these threshold changes at any point during the arbitration.

When the ASP was re-launched in August 2022, after a 2.5-year pause, Niagara Health issued a letter dated August 29, 2022, advising employees of their status in the ASP and reminding them of the thresholds and flagging periods for each stage. The grievor was advised she was in Stage 4, the final stage, with the current threshold of 3 occurrences or 56.25 hours in a four-month period.

Crucially, the Ontario Nurses’ Association did not challenge the ASP as a policy, nor did it take issue with the thresholds used in the ASP at any point during the arbitration. There was no challenge to the calculations as presented in the employer’s closing submissions. The union’s grievance focused entirely on how the ASP was applied to the grievor’s specific circumstances, not on the validity of the program itself, its threshold changes, or its current thresholds.

The Grievor’s Circumstances

The grievor had a record of excessive absenteeism over many years. However, in the final months leading up to the ASP, her attendance showed improvement. Many of the reasons for the absences had been resolved and were unlikely to be repeated. The grievor had also applied for and been granted special consideration for absences related to a chronic condition, and those absences were not counted in the flagging calculation.

When the hospital re-launched the ASP in August 2022, after a 2.5-year pause, the grievor testified that she did not receive the letter advising her of the re-launch or her status in Stage 4 of the ASP. Although the hospital claimed it sent the letter on August 29, 2022, there was no evidence it was copied to the union. The arbitrator accepted the grievor’s evidence that she was unaware of the ASP resumption or her critical position in the final stage.

The hospital’s evidence showed that COVID-related absences were not counted in the ASP. However, the arbitrator found problematic issues with how the hospital confirmed and counted absences. The grievor attended work on October 24, 2022, and underwent COVID-19 screening pursuant to the employer’s policy. On October 25, 2022, the grievor screened positive and was not permitted to work. She was subsequently tested and received a negative test result on either October 25 or 26. The dates of October 25 and 26 were properly excluded from the ASP as COVID-related absences. However, October 24 was coded as a sick day and counted under the ASP as the second occurrence that triggered her termination. The arbitrator found this troubling: the Occupational Health file provided no clarification about October 24, and the hospital’s witness could provide no satisfactory explanation for why October 24 was counted, relying only on payroll records and notes made by the Occupational Health Nurse. The arbitrator found this process entirely inadequate to justify counting this absence, particularly given that the grievor had screened positive the next day, suggesting the absence on October 24 may have been related to the COVID-19 exposure.

Similarly, the grievor experienced symptoms consistent with a possible heart attack on September 17, 2022, was admitted to hospital with cardiac catheterization performed on September 19, 2022, yet the hospital’s inquiry into whether this absence should have been excluded from the ASP was minimal. The grievor had advised the Occupational Health Department of the incident, and the arbitrator found that adequate inquiry would have revealed the medical facts and likely warranted exclusion from the ASP.

Positions of the Parties

The Ontario Nurses’ Association argued that the discharge was too harsh and a consequence of a mechanical application of the ASP. The union argued that the employer failed to consider the grievor’s individual circumstances in the last few months of the ASP, including recent improvement in her attendance and the fact that many of the reasons for her absences had been resolved. The union also challenged the hospital’s improper counting of certain absences, particularly the October 24 and September 17 absences. Importantly, the union did not raise any human rights complaint or assert that the grievor had a disability or other protected ground requiring accommodation. Instead, the union’s grievance focused on whether the ASP had been properly applied to this particular employee’s circumstances.

The hospital argued that the grievor had a documented record of excessive absenteeism and that the ASP was applied in accordance with the collective agreement. The hospital maintained that it properly excluded absences for chronic conditions and COVID-related absences, as required. The hospital argued that the ASP is designed to give employees multiple opportunities to improve their attendance, and the grievor had progressed through four stages without improving sufficiently to avoid termination. The hospital maintained that once the threshold of 3 occurrences or 56.25 hours was exceeded in Stage 5, termination was automatic and did not require further consideration of the employee’s circumstances.

Arbitrator Wilson’s Decision

Arbitrator Wilson found multiple issues with how the hospital applied the ASP to the grievor’s circumstances. First, the arbitrator was troubled by the hospital’s failure to conduct an adequate inquiry into the absences it counted against the grievor. While the hospital relied on payroll records and notes from the Occupational Health Nurse, this process was inadequate to confirm whether absences should be counted under the ASP. Specifically:

• October 24, 2022 Absence: The arbitrator found the hospital’s inquiry wholly inadequate. The grievor attended work on October 24 and underwent COVID-19 screening per the employer’s policy. The following day, October 25, she screened positive and was not permitted to work. However, October 24 was coded as a sick day and counted under the ASP as the second occurrence that triggered termination. The arbitrator found this troubling because there was no satisfactory explanation for why October 24 was counted when the positive COVID-19 test occurred the next day, suggesting the October 24 absence may have been related to the COVID-19 exposure. The hospital’s witness could provide no explanation beyond relying on payroll records, which the arbitrator found wholly inadequate.
• September 17, 2022 Absence: The grievor suffered symptoms consistent with a possible heart attack on September 17, 2022, was admitted to hospital, and underwent cardiac catheterization on September 19, 2022. While the grievor had advised the Occupational Health Department of this serious medical event, the hospital’s inquiry was minimal. The arbitrator found that adequate inquiry would have revealed these medical facts and likely warranted exclusion of the absence from the ASP.

Second, the arbitrator found that the hospital failed to provide adequate warning before terminating the grievor. The arbitrator noted that the employee was not aware the ASP had been re-launched and was in Stage 5, as she had not received the letter sent on August 29, 2022. Without awareness of her critical position in the ASP, the grievor had no opportunity to take corrective action to avoid termination.

Third, and most significantly, the arbitrator found that the hospital failed to have a meeting with the employee and the union before terminating her employment. The arbitrator noted that even though the grievor had progressed through four stages of the ASP, her recent attendance showed improvement and many of the underlying causes of her absences had been resolved. A meeting with the employee and union, prior to termination, would have allowed the hospital to consider these mitigating circumstances and potentially to pursue alternatives to termination.

The arbitrator concluded that the discharge for innocent absenteeism was not justified and ordered reinstatement of the grievor to her former position. The decision emphasizes that while hospitals have the right to establish and apply attendance management programs, arbitrators will scrutinize whether those programs have been applied in a manner that is fair and takes into account individual circumstances. Mechanical application of the ASP without adequate inquiry into absences, without adequate warning, and without a meeting to consider mitigating factors may result in arbitrators overturning terminations.

 

Citation: Wilson, Arb. · 2026 CanLII 7284