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Illness and Absenteeism Newsletter – August, 2012 Edition

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Welcome to the latest issue of our newsletter. You have received this monthly newsletter because you either signed up for our electronic newsletter, purchased a copy of our resource manual, or are engaged in the human resource or labour relations field.

This newsletter addresses illness and absenteeism. It is designed to communicate relevant and timely decisions of interest to human resource personnel, union representatives and labour relations practitioners across Canada. It is written by Denny Kells, author of the looseleaf manual Illness and Absenteeism. Information regarding that publication is set forth at the end of this newsletter.

If you have any questions or suggestions regarding our newsletter, please contact us by e-mailing [email protected].

In this edition you will find…




Feature Article

Does the Duty to Accommodate Require that an Employer Accommodate a Disabled Employee’s Preferences?

A recent decision of an adjudicator appointed under the Ontario Human Rights Code affirmed that the duty to accommodate does not include an obligation to accommodate an employee’s preferences regarding work location, time off, or hours and type of work. In doing so, adjudicator Flaherty distinguished between Code and non-Code grounds, and commented that there was no basis in the Code to accommodate work-condition preferences that did not engage a Code factor. Here, the work offered to the employee met his Code-related restrictions. Toronto Transit Commission (2012),2012  HRTO 677 (CanLII) (Flaherty)

This decision highlights an important distinction that must be considered: Is an employee’s apparent preference merely that, or is it a matter that may need to be addressed in effecting a proper accommodation? An example of the latter consideration arose where the employee’s “work-location preference” was fundamental to her need for accommodation, for the employee’s painful disability  was exacerbated by the lengthy commute, and her “expressed preferences” for continued assignment at a high school level went beyond preference and was a factor that needed to be addressed in effecting a reasonable accommodation; see Catholic District School Board of Eastern Ontario (2008), 176 L.A.C. (4th) 193 (Newman) considered at page 599 of the manual. See also CANPAR (2000), 93 L.A.C. (4th) 208 (Picher, M.G.) and section 14:619 of the manual.

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Recent Decisions of Interest

Expanded case summaries of the following decisions of interest are available on line to subscribers of Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Relations Practitioners.

  1. A collective agreement requirement that an employee submit proof of illness on a form provided by the employer did not confer on the employer the right “to require employee disclosure of confidential medical information that is broader in scope that what is reasonably necessary to determine the legitimacy of a sick leave claim, at any particular point in time.”A companion clause that enabled the employer to compel the employee to undergo an independent medical examination did not enhance the employer’s position, for that entitlement had to be exercised reasonably, having regard to all the circumstances. The employer’s obligations under the Canada Labour Code and its regulations were of no assistance to the employer, for they dealt with work-related illness and injury rather than entitlement to sick leave benefits. The required authorization was found to be invalid, in that it prospectively authorized the provision of additional medical information that might not be legitimately required. Greyhound Canada Transportation Corp. (2011), 213 L.A.C. (4th) 433 (Levinson)     [Read More]
  2. An arbitral award holding that a non-culpable termination for innocent absenteeism was null and void, by reason of the employer’s failure to meet with the employee “for the purpose of discussing and/or issuing discipline,” was set aside by the Alberta Court of Appeal.The majority of the arbitration board found that “discipline” can include non-culpable termination and that a meeting as per the collective agreement was mandatory in all cases. The Court of Appeal concluded that the Board’s interpretation was unreasonable and contrary to the plain meaning of the relevant provision. It also held that  “public law concepts of nullity for procedural errors have no place in the interpretation and enforcement of contractual rights under collective agreements … Even if there were procedural errors in this termination, they would not render the termination void; other remedies might, however, be available because of that contractual breach of the collective agreement.” Alberta Health Services (Calgary Area) (2011), 214 L.A.C. (4th) 1 (Alta. C.A.)
  3. A psychiatric nurse who had been terminated for having ordered a disruptive psychiatric patient out of a van during a patient outing was reinstated on the basis that a post-discharge diagnosis of PTSD (post-traumatic stress disorder) rendered his conduct non-culpable. Riverview Hospital (2011), 214 L.A.C. (4th) 113 (Burke)   [Read More]
  4. An alcoholic employee who was discharged, following an off-duty accident with his employer’s vehicle, was conditionally reinstated; with a suspension to the date of the hearing substituted for the termination.Among the conditions that were imposed were complete abstention; completion of a residential treatment program; regular attendance, and confirmation of same in Alcoholics Anonymous; a requirement to make reasonable efforts to obtain the assistance of a physician who has recognized experience in the treatment of alcoholism (and to authorize all addiction-related medical records and a copy of the arbitral decision to be provided to the physician); a requirement that the employee authorize that physician to communicate with his employer with respect to his progress, prognosis, and any restrictions or limitations (and any additional accommodation required) in order to facilitate the employee’s recovery from alcoholism; a requirement that the parties adopt measures to address the administration or verification of any medication prescribed to minimize the risk of relapse; reasonably exercised random drug and alcohol testing while at work; and a direction that the employee may be subject to discharge for failure to comply with any of these conditions. In addition, the award stipulated that a finding that the employee had alcohol or non-prescribed medication in his system while at work would be conclusively deemed to be just cause for discharge, with proof of such constituting a specific penalty for the purposes of the collective agreement and s. 48(17) of the Ontario Labour Relations Act.The terms and conditions of the employee’s continued employment were ordered to be in effect for a period of five years unless, prior to that time, objective medical evidence establishes that “there is no longer any reasonable risk that the [employee] will relapse into uncontrolled drinking or drug use …”A suspension, without compensation, was substituted to the date of the award (a period of five months). Hamilton (City) (2011), 214 L.A.C. (4th) 254 (Surdykowski)  [Read More]
  5. An employee who had been terminated for smoking marijuana on the employer’s premises was re-instated with a four month suspension. The reinstatement was accompanied by provisions regarding counselling and random testing. The arbitrator also imposed a condition that any breach of the employer’s policy concerning the use of prohibitive substances would result in the employee’s immediate discharge.The case was argued on the basis of the appropriateness of the penalty rather than on the duty to accommodate. In considering the issue of safety, arbitrator Baxter commented that the employer did not appear to have elevated the employee’s conduct to a safety issue until the hearing. The fact that the grievor was directed to return to work and performed work for ten minutes prior to being relieved of his duties suggested that the issue of safety had not been paramount.  Certainteed Insulation Canada (2011), 214 L.A.C. (4th) 278 (Baxter)
  6. An employee who had been terminated pursuant to a specific penalty clause that prohibited impairment on duty was reinstated with all lost compensation. The fact that the employee smelled of alcohol raised a reasonable ground to suspect that the employee had consumed alcohol that morning, but without more, it did not establish that the employee was impaired. There was insufficient evidence to conclude that the employee’s eyes were red or bloodshot, and there were no direct indicators of impairment, such as “slurred speech, belligerence, poor balance, rambling or incoherent speaking, or boisterousness.”  Toronto Transit Commission (2012), 214 L.A.C. (4th) 335 (Slotnick)
  7. An employee who was terminated for having taken an unauthorized one day leave to attend an appointment with a medical specialist was reinstated on the basis that such leave was authorized pursuant to section 50 of the Ontario Employment Standards Act. Kruger Inc. (2012), 214 L.A.C. (4th) 357 (Herlich)     [Read More]
  8. An arbitrator recently held that it was reasonable for surreptitious video surveillance to have been undertaken in an Ontario workplace, but that it was not reasonable for an undercover investigator to have engaged in video surveillance in the employee change room.In doing so, the arbitrator purported to find that the reference to establishing “just cause” in the management rights clause of the collective agreement created an explicit reasonableness requirement in matters related to just cause investigations. She therefore found it unnecessary to decide whether there existed a privacy right or entitlement in Ontario that could give rise to a general reasonableness requirement for the admission of surveillance evidence. The employer was permitted to adduce surreptitious video surveillance that was undertaken in areas other than the employee change room.  Fairmont Royal York Hotel (2011), 215 L.A.C. (4th) 62 (Trachuk     [Read More]
  9. An employee who had engaged in obviously offensive sexual harassment was unsuccessful in establishing that his misconduct was attributable to a brain injury sustained some eight years earlier. On the issue of whether the employee’s misconduct was sufficiently linked to his cognitive disability, and whether the disability effectively displaced his personal responsibility, the arbitrator accepted the evidence of the employer’s expert who had opined that the misconduct was not consistent with such an injury. Durham (Regional Municipality) (2011), 213 L.A.C. (4th) 205 (Bendel)  [Read More]
  10. An employee who had been terminated for “nesting” on the job (i.e. having purposely set out to sleep) was reinstated with an eleven month unpaid suspension. The suspension, which the arbitrator fashioned to continue for two months beyond the issuance of the award, was accompanied by a demotion from the position of group leader and the imposition of a “last-chance” agreement effective for two years following the employee’s reinstatement. Camco Corp. (2012), 215 L.A.C. (4th) 270 (Randall) [Read More]
  11. An adjudicator refused to provide relief from time limits to file a grievance in circumstances where the employee had been disabled for nine years by reason of mental illness. Key to the decision was the union’s failure to call medical evidence to substantiate the employee’s inability to at least initiate a grievance during the intervening years.  Ontario (Ministry of Community Safety and Correctional Services) (2012), 215 L.A.C. (4th) 336 (ONT GSB)  [Read More]

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About Illness and Absenteeism

Illness and Absenteeism.com is published monthly. It highlights recent cases addressing matters included in Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Relations Practitioners. Both are published by Dunlop Publishers (Canada) Ltd. and both are authored by Denny Kells.

The manual is available as an annual loose leaf subscription. Its unique format identifies each of the governing principles and then provides the reader with discussion and case excerpts that inform the principles. The manual addresses all aspects of illness and absenteeism. It also includes an extensive chapter focusing on the duty to accommodate employees absent because of illness or injury. Included as well are chapters dealing with pre-hearing production of medical documentation, introducing medical evidence at arbitration, arbitrator-ordered medical examinations, overview of federal and provincial privacy legislation (including the Charter, PIPEDA and similar statutory provisions), the admissibility of surveillance evidence, establishing the case at arbitration, assessing credibility and weighing conflicting medical opinions, addictions and mental illness, last-chance agreements and deemed termination provisions, culpable or blameworthy absenteeism and circumstances justifying termination for non-culpable or innocent absenteeism. Some chapters are supported by a checklist designed to assist in assessing the workplace issue in the context of the stated principles.

To subscribe to the manual or this newsletter, or to review an in-depth table of contents and a sample chapter, go to www.illnessandabsenteeism.com, or [click here].