In this edition you will find:
Feature Article: The duty to accommodate does not arise unless the employee can establish that she suffered from a recognized disability and that the disability was a factor in her adverse treatment.
Accommodation is not a free standing obligation. The duty to accommodate does not arise unless an employee can establish that she suffered from a disability and that the disability was a factor in her adverse treatment.
The terms “disability” and “handicap” are synonymous. While one or the other of those terms have been defined in most jurisdictions, the human rights legislation in British Columbia, Manitoba and Quebec is silent on the matter. Despite differences in legislation, courts, arbitrators and human rights tribunals have tended to take a unified approach to defining these terms. The Supreme Court of Canada has observed that “different human rights laws share a common objective, and this has often prompted Canadian Courts to ascribe a common meaning to similar provisions. In this way, courts have minimized the importance of minor differences in terminology.” See City of Montreal (2000) (SCC)
That is not to say that existing legislative definitions are without value. Those that exist are written in an inclusive fashion and often provide ready guidance on whether a condition constitutes a disability.
In general, it can be said that a disability is to be distinguished from a transitory illness that has little impact on an individual’s ability to participate productively in employment or other aspects of life. The disability need not be ongoing or permanent and it need not be proven to have existed where the employer discriminated based on a perception of disability.
The definition of disability also has a contextual component. For instance, the loss of a finger may constitute a disability for a dentist, but the same cannot likely be said in the case of a snowplow operator. Where the issue is disputed, an employee claiming a disability must call objective evidence sufficient to allow the adjudicator to determine if the employee’s condition constitutes a disability having regard to the impact of the affliction on the employee’s ability to perform her employment duties:
There is no magic in the term “disability.” It is meaningless, in a legal sense, unless supported by medical evidence which allows the Court to determine its legal significance in the context of a particular complainant. The term “disability” is extremely broad. Disabilities can range from very mild to moderate to extremely debilitating. Disabilities can increase or decrease over time, and some disabilities are amenable to medical treatment whereas others are not. Moreover, medical disabilities give rise to differing levels of vocational impact, with some disabilities having virtually no impact whereas others can have a profound impact on an individual’s ability to earn an income. In other words, there are multiple variables associated with the concept of disability, which variables must be supported by objective evidence in order to define the nature and vocational impact of it.
A disability may or may not be obvious. For example, the Court may easily deduce that a disability exists for someone who has undergone an amputation. [However, in other cases], the alleged disabilities are not so easily verified; hence the need for objective confirmatory evidence. Thus, it is incumbent on anyone alleging a disability to lead medical evidence to establish the pathology of the disability and what vocational impact, if any, has resulted from it. Absent such evidence, a trial judge is faced with an evidentiary vacuum which cannot amount to proof, on a balance of probabilities, of a disability or a vocational impact from it. See Syncrude Canada Ltd., 2015 ABQB 237 (CanLII)
In determining whether a certain condition amounts to a disability, adjudicators have at times focused on whether the employee’s condition prevents the employee from performing significant functions that most people can perform; whether it is ongoing as opposed to temporary; and whether it can or cannot be controlled by the employee.
An addiction to drugs or alcohol, or the existence of a serious psychiatric condition, will generally be found to constitute a disability. Where an employee alleges that her purported disability was a factor in any adverse consequence that she suffered, she will also have to establish that there was a causal connection or nexus between the behaviour in question and the purported disability.
The fact that a physician has declared an employee fit to work may not be determinative of whether or not she is suffering from a disability. In 1526597 Ontario Inc., 2014 HRTO 337 (CanLII) (Cleghorn), the employee had been off work after suffering a non-work related injury resulting in a fractured tail bone. Her doctor cleared her to return to work but on a gradual reintegration having modified hours. The employee was ultimately terminated after several issues arose. The adjudicator concluded that the employee was disabled at the time of her termination.
The recent case of MHPM Project Leaders, 2016 HRTO 327 (CanLII) (Scott) illustrates the approach that has been taken to defining disability. The employee slipped and fell, and despite attempts to return, missed several weeks of work. Approximately five months later, she suffered a miscarriage. Because of her absence from work, she did not achieve her 1800 hour work target for that calendar year, and she was given an “improvement required” notation on her annual performance evaluation. Within a matter of months, the employee was terminated for unspecified reasons.
The adjudicator found that both conditions constituted a disability. The injuries from the “slip and fall” took three weeks to heal, and despite two attempts, the employee was unable to return because of her injuries. The employer advised her to consider applying for short term disability coverage. The adjudicator stated:
An injury of this nature is not a common ailment, nor is it transitory. It is different from the flu and the common cold, which take a few days to get over and affect many people. The injuries experienced by the [employee] impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time.
The miscarriage was also found to be a disability. “It … is not a common ailment, and it is certainly not transitory. It is clear from the [employee’s] testimony that she continues to experience significant emotional distress from the miscarriage even today.” It was irrelevant that the employee had recovered from both conditions at the time of her termination, for the protections under the Code would have little meaning if the employer could terminate an employee contrary to the Code provided that the termination did not occur until after the employee had recovered. The adjudicator also rejected the notion that in order to constitute a disability, the condition must have an aspect of permanence and persistence.
The adoption of a somewhat principled approach to the definition of disability has resulted in the following general observations:
(i) a distinction may be drawn between an illness and a disability;
(ii) a disability need not be ongoing or permanent:
(iii) a disability can be founded on a perceived rather than an objective condition
(iv) periodic substance abuse is not necessarily a disability;
(v) a condition necessitating non-essential surgery may constitute a disability; and
(vi) learning issues and other cognitive issues may constitute a disability
Issues relating to disability and accommodation are fully addressed in Chapter 14 of the Illness and Absenteeism manual and its supplement.
Recent Decisions of General Interest
1. An arbitrator reinstated a terminated employee who had taken three days bereavement leave to which she was not entitled. The reinstatement, without compensation, effectively resulted in the employee having served a 17 month suspension without pay.
In Caesars Windsor, 2016 CanLII 31267 (ON LA) (Jolliffe), the employee was terminated for knowingly having requested three days bereavement leave to which she was not entitled under the collective agreement and by further submitting a document wherein she misrepresented her relationship with the deceased in an effort to substantiate the leave.
The employee had advised that her grandmother had died and she inquired as to the proper procedure for advancing a claim for bereavement leave. She subsequently provided a form from the funeral home which stated that her relationship to the deceased was one of “grandmother”. The employer was suspicious and obtained a copy of the obituary that described the employee’s mother as being a good friend of the deceased. Upon her return from bereavement leave, the employee explained that the deceased, while not being her grandmother, was “like a grandmother” to her.
The arbitrator accepted that there was a very close connection between the employee and the deceased. The employee was intimately involved in the funeral arrangements. The arbitrator concluded that the circumstances were “quite distinct from situations where a person has taken time off work, whether illness leave or bereavement, and has simply gone about other activities for their own outside unrelated purposes.”
The employee had been employed for 21 years. She had previously been suspended for three days for having made some unauthorized changes to the dealer’s rotational games schedule. Her clerical position involved an element of trust.
The arbitrator began his decision by stating
I unequivocally accept that fraud and dishonesty in an employee claiming contractually based entitlements is rightfully considered by arbitrators to be a very serious matter going to the heart of the employment relationship. It leaves the offending employee having to persuade the arbitrator on the entirety of the circumstances presented, including taking into account whatever mitigating circumstances might be seen to apply, that the employment relationship is still sustainable, that it has not been rendered moribund as some arbitrators have put it.
The employee was reinstated, but without compensation. In effect, she served the 17 month period from the date of her termination, to the date of her reinstatement, as an unpaid suspension.
Decisions involving benefit fraud are considered in sections 17:201 to 17:207 of the Illness and Absenteeism manual and it supplement.
2. An Ontario employer was ordered to pay an employee $1000 in damages for providing another employer with a copy of a medical note that it had received from its employee.
In St. Patrick’s Home of Ottawa Inc., 2016 CanLII 10432 (ON LA) (Knopf), the employee filed a grievance in which she sought damages because her employer released confidential medical information to another employer without her consent.
The employee was employed at St Patrick’s as a regular part-time dietary aid working 30 hours bi-weekly. She was also employed in a similar capacity in another personal care home (West End Villa). At West End Villa, the employee had provided several medical notes and had then been accommodated with respect to a number of her job duties.
Knowing of the employment at St Patricks, a manager at West End Villa contacted St Patrick’s with a view to determining whether her medical restrictions at West End Villa were legitimate. St Patrick’s was asked whether the employee had worked her regularly scheduled shifts, whether she had requested any workplace accommodation or had provided any work related restrictions, particulars regarding her hours of work and length of shifts, and whether St. Patrick’s had in fact been accommodating her. St Patrick’s responded by advising West End Villa that the employee was not currently being accommodated at its facility, that she had no work-related restrictions and that she was working her regular shift. Subsequent to that response, St Patrick’s provided West End Villa with a copy of a medical note that the employee had earlier provided. While St Patrick’s believed it had acted appropriately at the time, it subsequently acknowledged that the information should not have been disclosed without the employee’s consent.
The grievance relied on the employer’s confidentiality policy and the provisions of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1. Section 63(2) of that Act provided that:
No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.
The union also alleged that the employer’s actions amounted to a violation of the tort of Invasion of privacy or “Intrusion upon Seclusion” as defined in Jones v. Tsige. That case essentially established that there was a common law right to privacy in Ontario.
The arbitrator found that the sharing of medical information amounted to a breach of the Occupational Health and Safety Act., for section 63(1)(f) of that Act specified that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case. She also found that the sharing of the medical information amounted to a violation of the tort of intrusion upon seclusion.
After considering the various factors involved, the arbitrator ordered that the employee be paid the sum of $1,000 as damages.
The parties did not appear to have cited any legislation other than the Occupational Health and Safety Act.
Issues relating to privacy and non-disclosure of employee information are addressed in Chapter 12 of the Illness and Absenteeism manual and its supplement.
3. A terminated employee who had regularly maximized her part time earnings by working overtime or picking up extra shifts was awarded lost wages that were 43% above her base income from her regularly assigned shifts. She was also awarded $5000 in general damages.
In Alberta Health Services, 2016 CanLII 32702 (AG GAA) (Wallace), the issue was the appropriate quantum of compensation to be paid to a nurse who had been terminated and then voluntarily reinstated by her employer.
The employee worked in a .76 EFT position. The arbitrator accepted that she had always been a strong worker motivated to maximize her earnings by working multiple jobs and picking up extra shifts whenever possible. Arbitrator Wallace accepted that the proper approach to establish the employee’s quantum of lost income from lost extra work opportunities, whether at straight time or overtime, was to try to individualize the loss, with the employee’s own history of seeking out and accepting regular work being highly relevant to the inquiry.
The evidence established that the employee, while employed in her .76 position, earned additional monies that brought her total earnings to the level of what she would have earned had she been working on a 1.09 full time equivalent basis. This represented approximately 43% above her base income from her regularly assigned shifts. Lost income was awarded on that basis.
The employee was also awarded $3260 reimbursement for courses she took in an effort to become qualified for alternate employment.
The employee sought general damages on the basis of her wrongful termination. The arbitrator concluded, after a review of the authorities, that the case law establishes that “general damages will usually lie in discipline cases where there is blameworthy conduct by the employer that goes beyond a simple misapprehension of whether just cause for the discipline exists.” He stated that “it would seem obvious that there needs to be a causal connection between the discrimination and the damage sought to be remedied before general damages are awarded.”
An award of general damages was considered appropriate on the basis that the employer had not taken any meaningful steps to discuss and resolve the grievance for well over a year.
… the failure to afford a meaningful grievance meeting is blameworthy conduct additional to the employer’s misapprehension of whether just cause existed for the termination. It significantly contributed to the [employee’s] mental, emotional and financial distress. And it was reasonably foreseeable to the employer that this might occur. This in my opinion justifies an award of general damages to the [employee].
The employee was awarded $5000 in general damages.
The issue of assessment of damages relating to disability and accommodation is fully addressed in section 14:700 of the Illness and Absenteeism manual and its supplement.
4. A collective agreement that contains a specific penalty for improper conduct does not prevent an employer from imposing a lesser penalty where the employer considers such to be appropriate.
In Neegan Development Corporation, 2017 CanLII 13561 (AB GAA) (Casey), the collective agreement provided that “a violation of any regulation of the Occupation Health and Safety Act or any unsafe working practice shall be considered just cause for dismissal.” The arbitrator found that this amounted to a true “specific penalty clause” that deprived the arbitrator of the statutory jurisdiction to substitute a penalty for discipline that had been properly imposed.
The employee was found to have engaged in an unsafe working practice when he struck a safety barrier while driving the employer’s truck. He was initially advised that his employment was being terminated. After having appealed to management, he was told that he would be suspended for the six days that remained in his present shift rotation. When he was about to return for his next rotation, he was informed that his employment was being terminated.
The union had argued that the collective agreement provision did not amount to a specific penalty because it did not mandate that the employer terminate an employee who had engaged in an unsafe working practice. In dismissing that argument, arbitrator Casey relied on Aviscar Inc., 2015 CanLII 43416 (AB GAA) (Wallace), where arbitrator Wallace had stated
… a penalty can be “specific” without removing all power of choice from the employer. “Specific” is not the same as “mandatory,” and the clause will not be bad just because the employer chooses not to invoke it or imposes a lesser penalty than the specified one.
The union also contended that the doctrine of “double jeopardy” invalidated the termination because the employer had initially imposed a six day suspension. The arbitrator accepted that the six day suspension had been communicated as being final rather than an interim suspension pending a final determination. Consequently, the termination was found to be null and void. In the result, it was the employer’s initial determination (i.e. the six day suspension) that prevailed.
The issue of specific penalty clauses is considered in section 16:400 of the Illness and Absenteeism manual and its supplement.
5. An arbitrator upheld a one day suspension that was imposed after the employee fell asleep on three occasions during a one week period.
In Sofina Foods Inc., 2016 CanLII 30110 (AB GAA) (Jones), the employee was suspended for one shift for three incidents of sleeping on the job. All occurred during a one week period.
The employer had a practice of first imposing a verbal warning followed by a written warning for a repetition of the same type of incident. Here, the union took issue with the fact that there was neither a verbal nor a written warning imposed for sleeping prior to the imposition of the one day suspension.
The employee had received several warnings for past misconduct and the employer contended that it was entitled to consider the employee’s entire past history in imposing the one day suspension. In dismissing the grievance, the adjudicator stated:
I do not accept the Union’s submission that the Employer is bound to impose a Verbal Warning for the first incident of a particular type. That is not part of the collective agreement. There is no evidence of any representation by the Employer to the Union that all disciplinary incidents would at the first instance attract a Verbal Warning without regard to the nature of the incident in question or to the [employee’s] entire disciplinary record. There is also no evidence from the [employee] that he did not grieve [his] seven disciplinary [warnings] because of some mistaken reliance or misunderstanding that the employer was prevented from imposing a suspension for any type of incident without having previously imposed a Verbal and a Written Warning.
In addition, in my view, a one day suspension for three sleeping events – all of which occurred within one week – is not disproportionate, unjust or unreasonable.”
Issues related to sleeping on the job are addressed in Chapter 17 of the Illness and Absenteeism manual and its supplement.
6. An employer did not act improperly when it assigned an injured employee to work “above complement” rather than remain off work and collect “loss of earnings” under a workers’ compensation plan.
In Revera Long Term Care Inc., 2016 CanLII 78549 (ON LA) (Chauvin), the employee worked as a personal support worker. As a result of a knee injury, she was only able to perform some of her regular tasks. After she filed a WSIB (workers’ compensation benefits) claim, the employer assigned her to work “above complement” rather than have her receive WSIB “loss of earnings” benefits. It did so because scheduling and paying another employee to perform the majority of the injured employee’s duties was substantially less expensive than the costs that would have been assessed against it by the WSIB. The employee remained in this status from early February onward.
On October 21 of that year, the WSIB denied her claim. It was not until December of that year that the employer became aware of the WSIB decision. At that point, it contended that it could no longer accommodate the employee and she was placed on a leave of absence. She received all of her sick leave benefits under the collective agreement and returned to work in September of the following year under a work hardening program. The employer “topped up” her pay during the work hardening program so that she received full compensation.
The question before the arbitrator was whether the employer could have accommodated the employee without undue hardship given her medical conditions.
The Union contended that the employer had failed to fulfil its duty to accommodate in the following respects:
(a) the employer failed to conduct a proper investigation and assessment to determine if the employee could, with reasonable accommodation, perform the essential duties of her position, in that it did not adequately consider the bundling of work, retraining assistance from other staff or additional funding resources.
(b) the cost of keeping the employee at work, above complement, did not constitute an undue hardship, and
(c) the placement of the employee off work and on sick leave benefits when it became aware that the WSIB claim had been denied was arbitrary, discriminatory and unfair to the employee.
The arbitrator found that the employee could not have been accommodated so as to render her capable of performing or fulfilling her essential duties without hardship to the employer. In coming to that conclusion, he accepted the following propositions as a proper statement of the law:
(i) the duty to accommodate does not require an employer to schedule an employee on an “above the regular complement” basis.
(ii) the duty to accommodate up to the point of undue hardship does not require an employer to create a new job or a shadow position for an injured worker, nor does it require an employer to assign duties between two partners in a manner that would create a serious safety risk for the non-accommodated partner, nor does it require the employer to fundamentally restructure its work processes or systems. An employer is not required to accommodate to the extent that it provides another employee specifically for the purpose of assisting a disabled employee to perform the essential duties of his or her job.
(iii) modified work has to be productive. It would constitute an undue hardship to require an employer to provide “make work.”
(iv) the employer is not required to remove another employee from a position in order to accommodate a disabled employee.
(v) the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment. The essence of such contract is that the employee has a duty to provide work in exchange for remuneration.
(vi) the employer’s duty to accommodate ends where the employee is no longer able to fulfil the basic obligations associated with the employment relationship.
The arbitrator commented that the employer had conducted a satisfactory investigation and that the employee’s physical restrictions were too great to allow for accommodation in her position, short of undue hardship. There could not have been an appropriate bundling or cobbling of jobs, or any other form of accommodation in her position that would not have amounted to undue hardship to the employer. The employee was not qualified to perform other positions and there was no evidence that training would have rendered her so.
The grievance was dismissed.
Issues relating to disability and accommodation are fully addressed in Chapter 14 of the Illness and Absenteeism manual and its supplement.