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Each month we will send out updates on new cases received and updates to labour and employment laws affecting you. All the questions below are required.

 

April 2015 Newsletter

In this edition you will find:

Featured Case: An employee’s Facebook postings were sufficient to establish that the employee had a hostile and disrespectful attitude toward her employer. Those comments, coupled with her defiant and non-apologetic attitude, reflected negatively on her assertion that she was targeted due to her pregnancy.  [Click here]

Recent Decisions of General Interest:

  1. An employee with an admitted history of excessive absenteeism was reinstated on the basis that the employer had failed to consider the possibility that the employee’s prognosis would improve following surgery. The termination was premature and based on insufficient inquiry. [Click here]
  2. A pregnancy-related complaint was dismissed when the employer established that the employee’s termination was based on her performance rather than her pregnancy. [Click here]
  3. Damages for lost income were significantly reduced where the employee’s disability, although a factor in her termination, was not the predominant reason for her termination. [Click here]
  4. Bald assertions of adverse treatment were dismissed where the employee failed to establish a clear factual foundation for such assertions. [Click here]

 

  1. An employer was found to have been justified in insisting on a medical assessment to determine the extent to which the employee’s medical condition (MS) was responsible for her inadequate performance. [Click here]

 

 


 

Featured Case: An employee’s Facebook postings were sufficient to establish that the employee had a hostile and disrespectful attitude towards her employer. Those comments, coupled with her defiant and non-apologetic attitude, reflected negatively on her assertion that she was targeted due to her pregnancy.

In IMP Aerospace Components, 2014 CanLII 41257 (NS HRC) (Blackburn), the issue was whether the employer had contravened the Nova Scotia Human Rights Act by not accommodating the employee during her pregnancy.

 

The adjudicator adopted the test for pregnancy-related discrimination that was set forth in an earlier decision of a Nova Scotia board of Inquiry in Community Justice Society, 2013 [NS HRBID] No. 5:

 

The initial onus is upon the Complainant to establish a prima facie case of discrimination, in the absence of any evidence offered by the Respondent. To meet this onus, she has to establish that: a) she was pregnant; b) the Respondent’s actions had an adverse effect upon her; and c) it is reasonable to infer a connection between the pregnancy and the adverse treatment.

 

If the Complainant meets this legal test, the onus shifts to the Respondent to demonstrate on a balance of probabilities that the adverse effect occurred due to non-discriminatory reasons. In this respect, the subjective intention of the Respondent is irrelevant.

 

The adjudicator concluded that the disciplinary warnings that were issued to the employee and a one day suspension for leaving work early were not related to her pregnancy.

 

In assessing the employee’s credibility, the adjudicator concluded that the employee’s Facebook postings established that she had a hostile and disrespectful attitude toward the employer, in that her Facebook postings stated that “it’s like Nazi Germany in there; I.M.P. [the employer’s name] stands for idiot managers please; and Supervisors are ok, but upper management doesn’t know their ass from a hole in the ground.”

 

The employer testified that when these comments were brought to the employee’s attention, she was defiant and took the position that anything on Facebook was personal. The adjudicator concluded that the employee’s comments, coupled with her defiant and non-apologetic attitude, reflected negatively on her assertion that she was targeted, and not accommodated, due to her pregnancy.

 

The adjudicator also found that attendance management program letters that were issued during the relevant period were neither disciplinary nor discriminatory in nature, but rather were due to matters unrelated to the employee’s pregnancy.

The complaint was dismissed.

 

The issue of credibility and its assessment is considered in section 13:500 of the Illness and Absenteeism manual and its supplement.


 

 

 

Recent Decisions of General Interest:

1. An employee with an admitted history of excessive absenteeism was reinstated on the basis that the employer had failed to consider the possibility that the employee’s prognosis would improve following surgery. The termination was premature and based on insufficient inquiry.

In Humber River Hospital, 2014 CanLII 50008 (ON LA) (Craven), the employee had been terminated for innocent absenteeism. The union did not dispute that the employee’s absenteeism was excessive, with the issue being whether the employee was capable of regular attendance in the future. The arbitrator stated:

 

The current arbitral consensus that emerges from a consideration of the various authorities cited is that the onus of establishing that an employee is incapable of regular attendance in [the] future falls on the employer. In discharging that onus an employer is entitled to rely on the employee’s past record unless the reasons for poor attendance in the past are no longer operative. Once an employer has shown that it is a reasonable inference from the past record that the employee’s excessive absenteeism will continue, the onus shifts to the employee to show otherwise. There is a useful list of such factors quoted at para. 59 of Consolidated Fastfrate [2000 Carswell Ont 8375].

 

The arbitrator commented that the employee had “a persistent pattern of frequent and unanticipated short-term absences. It is recognized that such a pattern can be more disruptive to an employer’s ability to schedule and assign work than infrequent or planned absences of greater duration.”

 

The employee suffered from chronic back pain and had been prescribed a non-steroidal anti-inflammatory drug, had been referred to physiotherapy and had been advised to lose weight. She discontinued the therapy and medication and there was no evidence that she had lost weight.

 

The union alleged that the employer had failed to accommodate the employee’s disability. In considering whether the employee was disabled, the arbitrator referenced City of Montreal, [2000] 1 S.C.R. 665 [discussed at page 528 of the Illness and Absenteeism manual], where the Court stated:

 

Although I believe that health may constitute a ‘handicap’ and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or ‘normal’ ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a ‘handicap’ for the purposes of s. 10.

 

As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of ‘handicap’, although they may be discriminatory for other reasons.

 

It is not self-evident whether aches and pains which are age and weight related and for which the recognized treatment is diet, exercise and non-prescription medication are to be thought of as disabilities ‘caused by bodily injury, birth defect or illness,’ within the meaning of the human rights legislation, or merely ‘normal ailments’, notwithstanding that from time to time, they may interfere with the ordinary business of living. In my opinion the determination would require both medical testimony and legal submissions that are not before me. Accordingly, I am not in a position to determine whether the intermittent knee or back pains that excused the [employee’s] frequent short-term absences constituted a disability. For this reason I am unable to accept the Union’s submissions with respect to the duty to accommodate.

 

The employee’s surgical hernia, which was diagnosed pre-discharge, was ultimately the subject of successful surgery subsequent to her discharge. The employer failed to inquire on the employee’s prognosis prior to terminating her employment. One of her medical notes advised that she had been referred for abdominal surgery. The arbitrator stated that

 

It was open for the Employer, at or before the point of termination, to have asked the [employee] for medical information relevant to her prognosis. It does not appear to have done so. In my opinion, the Employer’s determination, that the [employee] was incapable of regular attendance in future, was premature and based on insufficient inquiry.

 

The employee was reinstated, with all lost wages and benefits but subject to terms regarding her attendance in the first 12 months following her reinstatement.

 

The definition of handicap and the issue of termination for innocent absenteeism are considered in sections 14:202 and 17:300 of the Illness and Absenteeism manual and its supplement.


 

 

 

 

2. A pregnancy-related complaint was dismissed when the employer established that the employee’s termination was based on her performance rather than her pregnancy.

In Cleator, 2014 BCHRT 180 (CanLII) (Tyshynski), the employee alleged that her termination was attributable to her pregnancy. In dismissing that allegation, the adjudicator stated that of ongoing and particular relevance to the complaint was the following statement in Parry v. Vanwest College, 2005 BCHRT 310:

 

A workplace is not “frozen” while an employee is away on maternity or parental leave; the employer is entitled to make legitimate business-related decisions which may affect the configuration of the workplace to which the employee returns. In making those decisions, however, the employer must ensure that the employee on leave is not differentially affected by those decisions or left worse off than other employees who were not away on leave.

 

The adjudicator also stated that “the timing of the termination of employment in pregnancy-based complaints is significant.” She relied on FPI Fireplace Products International, 2009 BCHRT 95 (CanLII), affirmed at 2012 BCCA 141 (CanLII), where the Tribunal commented:

 

The timing of the termination decision is significant. In many pregnancy cases, the close temporal proximity between the employer learning of the pregnancy and the termination or other adverse employment-related consequence is sufficient to permit an inference of causation …

 

In dismissing the pregnancy-related complaint, the adjudicator stated:

 

Termination of employment is an adverse impact. I find that [the employee] has not established any relationship between her pregnancy and the termination of her employment. [Her] employment was terminated because she made many errors, she conducted herself in an unprofessional and rude manner, and she failed to report back to [the employer] when she would be back at work. My task is not to determine whether the termination of [her] employment was appropriate in the circumstances. It is only to determine whether her sex (pregnancy) was a factor in her termination. I have found that it was not … She has fallen far short of establishing a prima facie case of discrimination based on sex (pregnancy).

 

The issue of establishing a prima facie case is considered in section 14:410 the Illness and Absenteeism manual and its supplement.

 

 

 

 


 

3. A union’s refusal to dispatch an addicted member via its hiring hall 3. Damages for lost income were significantly reduced where the employee’s disability, although a factor in her termination, was not the predominant reason for her termination.

In TDL Group Corporation, 2014 HRTO 1247 (CanLII) (Cook), the employer terminated the employee for performance-related issues. The employee alleged that her illnesses (three absences, each lasting approximately one month, in the year prior to her termination) were the “real reason” for her termination. The absences were for different medical issues and the employee had no on-going disability after returning to work following each leave.

 

The adjudicator concluded that the employee’s illnesses constituted a disability:

 

Each of the three periods of medical leave was associated with a relatively significant medical condition and none were merely transitory conditions.

 

[The employee alleged] that her employment was adversely affected because these periods of disability resulted in a negative assessment of her performance which would not have occurred if she had not experienced the periods of disability. I am satisfied that if the [employee] can prove that this is what happened, and subject to the [employer’s] explanations, she will have proven discrimination contrary to the Code.

 

Each of the periods of absence were covered by a co-worker who herself carried a full workload. The employee had received a written warning following what appeared to be her first period of absence. Some of the incidents that were relied on had not been the fault of the employee, and the supervisor agreed that others would likely have been caught or corrected by the employee if she had been at work rather than off on a medical leave. The adjudicator concluded that “There is thus some evidence to show that the Written Warning was unfair and that some of the unfairness can be attributed to the fact that the [employee] was off work due to a disability.”

 

[That], combined with the fact that the [employee’s] employment was terminated after [she] had been off work due to disability three times in one year, is sufficient to establish a prima facie case of discrimination.

 

The inquiry then turns to an assessment of the [employer’s] explanation for the termination.

 

Upon consideration of the alleged performance issues, the adjudicator stated that while the employer’s decision to terminate was influenced by discriminatory factors, “this was only one factor [for] there were genuine performance issues that were the underlying reason for the termination. These performance issues were documented before the [employee’s] periods of disability and they could not therefore have been discriminatory. [While the employee’s] disability was not the predominant reason for the termination, … it was a reason that contributed to the decision to terminate the employment at the time it was terminated.”

 

Reinstatement was deemed to be inappropriate. On the question of lost income, the adjudicator concluded that the employee “conducted a minimal search for alternate work … She did not sufficiently take measures to mitigate the economic losses and [that] limits any compensation she is entitled to for lost income.” The employee, with 12 years of service, was awarded the equivalent of three months wage loss. That was considered appropriate “based on the evidence about the general availability of jobs in the industry, the probability that continuing performance issues would likely have resulted in an eventual termination of employment, and … the [employee’s] limited measures to mitigate her economic losses …”

 

On the issue of compensation for injury to dignity, feelings and self-respect, the adjudicator found that the quantum of the award should be reduced to account for the fact that the discrimination was only one factor that led to the employee’s termination:

 

Since this is a human rights Application and not a wrongful dismissal action, the [employee] is entitled to compensation for only the part of the overall injury to dignity, feelings, and self-respect that she experienced as a result of a termination that she felt was unjust that is attributable to the infringement of her Code-protected rights.

 

The sum of $12,500 was awarded as damages for injury to dignity, feelings and self-respect.

 

The issue of entitlement to damages is considered in section 14:700 of the Illness and Absenteeism manual and its supplement.


 

4. Bald assertions of adverse treatment were dismissed where the employee failed to establish a clear factual foundation for such assertions.

 

In Vancouver Coastal Health Authority (No. 2), 2014 BCHRT 188 (CanLII) (Blasina), the employee suffered from sleep apnea. “She claim[ed] to have difficulty waking, fatigue and a lack of energy, and to need more time in the morning before she is ready to go to work. She also claimed to suffer from stress, anxiety and depression. Her son was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and his condition made it more difficult to “get going” in the morning. She sought an accommodation that would provide her with a flexible start time and an opportunity to make up for any missed time by working through her lunch break or at the end of the day. The parties entered an “Accommodation Agreement” that provided the employee with a flexible start time. It was to be reviewed after six months.

 

The employee subsequently commenced a medical leave after having received a medical note “for leave from work due to depression and anxiety.”

 

The employee’s complaint alleged numerous incidents of adverse treatment.

 

These included initially refusing her request for accommodation, subjecting her to added scrutiny with respect to work attendance and late arrivals, delaying responding to the employee’s request for time off  and refusing to allow the requested time off, mismanaging co-worker complaints about her late arrivals, blaming her, and particularly her accommodation, for workplace conflicts, and disregarding her emotional issues and using her fragile emotional state to fuel accusations that she caused friction in the workplace.

 

The adjudicator characterized the employee’s accusations as being for the most part “bald assertions without providing a clear factual foundation. [Her] repetitive, forceful expression of her accusations suggests the sincerity and tenacity of her conviction, but does not raise her assertions above conjecture.”

 

The application was dismissed, prior to hearing, on the basis that it had no reasonable prospect of success under the terms of the British Columbia Code.


 

5. An employer was found to have been justified in insisting on a medical assessment to determine the extent to which the employee’s medical condition (MS) was responsible for her inadequate performance.

In Thompson Rivers University, 2014 BCHRT 193 (CanLII) (Rilkoff), the employer requested that an employee, who was experiencing performance issues, provide a medical assessment attesting to her medical condition (MS) and its impact on her performance. The employer stated that it wanted to determine what accommodation might be required. The employee alleged that the employer’s request amounted to a discriminatory allegation that the employee was suffering from a mental disability. Several months later, the employee went off on a medical leave and then filed a human rights complaint against her employer.

 

The adjudicator summarized the employee’s position as follows:

 

While [the employer] is entitled to ask for medical information in certain circumstances, … it cannot ask for her medical information unless she asks … for an accommodation, [and that it satisfies her] that it has a basis for doing so.

 

The adjudicator cited Provincial Health Services (No. 4), 2009 BCHRT 371 (CanLII), where it was stated:

 

In Gardiner v. Ministry of Attorney General, 2003 BCHRT 41, the Tribunal commented on an employer’s duty to inquire where it had reason to believe that a medical condition was affecting an employee’s performance: … [an employer] has a duty to inquire further where it has reason to believe that there is some question regarding a possible adverse effect of an employee’s medical condition on his ability to do the work prior to taking any action which would adversely impact on the employee.

 

In such circumstances, it is the employer’s responsibility to obtain relevant information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work …

That is not to say that the employee must provide any and all of the medical information requested. … good faith requests for medical information made sensitively and addressed to the employer’s duty to inquire in the circumstances are not discriminatory and do not violate the Code.

Moreover, the employee may choose not to provide the information but will then likely be faced with a disciplinary response, not for failure to provide the medical information but because, in the absence of medical information supporting an accommodation, there can be no requirement to provide one.

The request for medical information was considered appropriate. The complaints were dismissed on the basis that they did not have a reasonable prospect of success.

The issue of the reasonableness of an employer’s request for a medical assessment in the context of considering fitness to work is addressed in section 7:302(b) of the Illness and Absenteeism manual and its supplement.