" /> December 2014 Newsletter | Illness & Absenteeism
 

Subscriber Resources

Please enter your email address and password to access members only resources

I Forgot my Password

Archives

Subscribe

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.

 

December 2014 Newsletter

In this edition you will find:

Featured Case: An employer who is contractually entitled to seek medical evidence in a case of suspected sick leave abuse must establish that its discretion was exercised reasonably. Where the suspicion is based on frequent absenteeism, the employer may be required to give the employee an opportunity to provide input prior to the exercise of discretion. Moreover, the arbitrator may expect that the actual decision maker be called to testify regarding the basis for her suspicion.

In the absence of an obligation under the collective agreement, the employer was not obligated to pay for the cost of the employee’s medical certificate.  [Click Here]

Recent Decisions of General Interest:

  1. A medical certificate that addresses possible accommodation was not necessarily determinative of the issue. [Click Here]
  1. An arbitral award was quashed where it required the employer to prove that an employee who was terminated for culpable absenteeism was not ill at the time of the termination. [Click Here]
  1. The improper demotion of an employee who was suffering from chronic anxiety was not sufficient to establish discrimination on the part of the employer. [Click Here]
  1. A discriminatory rule that had been adopted in a large automotive complex was upheld on the basis that it amounted to a rational solution to address a shortage of temporary positions for employees who were temporarily disabled. [Click Here]
  1. An employer who terminated an employee on the basis of abandonment or being absent without leave was not entitled to assert that the termination should be sustained on the ground of excessive absenteeism. [Click Here]
  1. Subscriber-Only Manual Supplement for December 2014: General Preview Now Available until January 15, 2015. [Click Here]

 

Featured Case: An employer who is contractually entitled to seek medical evidence in a case of suspected sick leave abuse must establish that its discretion was exercised reasonably. Where the suspicion is based on frequent absenteeism, the employer may be required to give the employee an opportunity to provide input prior to the exercise of discretion. Moreover, the arbitrator may expect that the actual decision maker be called to testify regarding the basis for her suspicion. 

In the absence of an obligation under the collective agreement, the employer was not obligated to pay for the cost of the employee’s medical certificate.

In Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 49987 (ON LA) Dissanayake), the employer was alleged to have contravened the terms of a collective agreement when it requested medical certificates for absences of less than five days from several employees. The relevant provision stipulated

After five (5) days absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified  medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days.

The adjudicator noted that the collective agreement sick leave benefit amounted to a substantive right. The adjudicator found that the clause also created a differential onus:

… for absences in excess of 5 days, the onus is placed on the employee, consistent with the general principle [that in order to claim sick pay, an employee must meet the initial onus of proving that his absence was due to sickness.] … for absences of less than 5 days, a medical certificate may be required at the employer’s discretion but only where there is a suspicion of abuse of sick time. The effect of this provision [is that under this article] as a general rule employees are entitled to paid sick leave for absences of less than five days without the need for a medical certificate. However, the parties have negotiated an exception to this general rule [such that] a medical certificate may be required at the employer’s discretion, where abuse is suspected. In the [adjudicator’s] view, the onus is on the employer to satisfy the [adjudicator] that the exception applies in the particular circumstances of each case.

The adjudicator stated

The question then is whether the employer has met its onus. In order to do so, it must demonstrate to the [adjudicator] that it held a suspicion of abuse on the part of each grievor, not only honestly, but also reasonably. In the present case, the employer’s honesty and good faith are not in issue. The issue is whether the discretion was exercised reasonably. For that to be the case it must establish that the minimum standards set out … in Re Kuyntjes [513/84 (Verity)] have been met.

The relevant portion  of Kuyntjes provided

In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesitate to substitute their view for that of the decision maker, which is a recognition of the fact that Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discretion include the following considerations:

1) The decision must be made in good faith and without discrimination.

2) It must be a genuine exercise of discretionary power, as opposed to rigid policy adherence.

3) Consideration must be given to the merits of the individual application under review.

4) All relevant facts must be considered and conversely all irrelevant considerations must be rejected.

The adjudicator concluded that the employer had not presented sufficient evidence that it exercised its given discretion reasonably. He commented that

In my view, the employer must be held to a higher standard in reviewing the evidence to determine whether the employer has met its onus of establishing that it exercise[ed] the … discretion reasonably. Unlike in other situations where the employer is granted discretionary authority under the collective agreement, such as approval of unpaid leaves or compassionate leave, here the exercise of discretion has the result of infringing upon a substantial right employees have … to paid leave for sickness …

In addition to affecting a substantial collective agreement right, the employer’s exercise of discretion under [the article] has other adverse impact on employees. An illness, in many situations, may prevent the employee from working, but may not require a visit to a doctor … When an employee has to obtain a medical note in these circumstances it would require him to go out and expend time in a doctor’s office or hospital when the illness requires him to rest. One need not be medically qualified to suggest that at least in some circumstances, the exertion may exacerbate the illness … Additionally … the doctor may charge for the note for which the employee is responsible.

The adjudicator concluded that the employer did not present sufficient evidence to establish that it met the minimum requirements for a proper exercise of discretion. The Superintendent who made the ultimate decision did not testify to explain “how and why she exercised the discretion in the particular circumstances of each [employee].” The testimony given lacked the level of specificity required to establish that the employee’s individual circumstances “were given meaningful consideration.”

The adjudicator stated that if the employer is relying on an analysis of the employee’s attendance record, that analysis must have been undertaken at the time that it exercised its discretion. Moreover, where the employer is required to apply the administrative law principles of fairness, the employer, in fulfilling its obligation to consider all relevant facts, “must permit the employee to provide input before exercising its discretion … In providing an employee the opportunity to provide relevant input, the employer is of course entitled in the exercise of its management rights to stipulate the method in which the information is to be provided, and to set reasonable time limits to do so.”

.. in seeking input, it is incumbent upon the employer to sufficiently set out the basis for its suspicion, so as to enable the employee, if he so wishes, to provide any relevant information for the employer’s consideration. To be clear, this must be done as part of the decision-making process, and not after the fact at the time of conveying a decision already made.

The adjudicator concluded that in the absence of an obligation under the collective agreement, he could not impose a requirement that the employer pay for the cost of the medical certificate. He also concluded that the employer could not withhold sick pay until it established that its suspicion had been justified:

… until the employer determines that the absence was not due to sickness, the employee’s right to be paid without the need for a medical certificate is unaffected. That right may be infringed only where the employer concludes that the absence was not due to sickness in circumstances where the employee refuses to provide a medical certificate within a reasonable period or where a medical certificate provided does not sufficiently substantiate that the absence was due to sickness. The employer is not entitled to withhold pay until it is in a position to decide, and in fact decides, that the absence was not due to sickness.

Matters related to the exercise of and evidence required to establish a proper exercise of discretion are considered in section 7:202 of the Illness and Absenteeism manual and its supplement, while payment for medical certificates is considered in section 7:302 of the supplement.


 Recent Decisions of General Interest:

A medical certificate that addresses possible accommodation was not necessarily determinative of the issue.

In Kawartha Pine Ridge District School Board, 2014 HRTO 760 (CanLII) (Cook), a teacher alleged that he was discriminated against primarily because his severe vision problems resulted in his being refused the opportunity to accompany a graduating class on an out-of-town field trip. At the relevant time, the employee was off on sick leave because his condition rendered him unable to teach.

The employee’s doctor reported that while the employee was unfit to teach, “he is able to attend the graduation trip with his students as he is able to do normal duties associated with daily living. He is able to walk to the store, get in and out of a car or walk up and down stairs …” The adjudicator stated that the question was not simply whether the employee could safely travel but was whether he was capable of performing the essential duties of a teacher who is part of the teacher compliment of a school trip.

The employee contended that the employer was required to accept his doctor’s note advising that he was able to go on the trip, and that if the employer questioned the medical information, it needed to seek clarification from the employee’s doctor or perhaps from an Independent Medical Examiner.

The adjudicator stated that the employee’s position was based on an incorrect understanding about the use and purpose of medical information regarding restrictions and the accommodation process:

The accommodation process requires the workplace parties to co-operate in identifying the best way to accommodate the disabled person’s needs. Medical information is often an essential agreement in this process. The purpose of the medical information is to identify the person’s restrictions and abilities.

However, while this information is very critical, it does not necessarily in itself resolve the accommodation process. This is because the accommodation process requires more than identification of a person’s restrictions and abilities. It can involve a host of other considerations, including how best to adjust workloads and schedules, impact on others, health and safety considerations, and so on.

It is the employer, in consultation with the employee that is in the best position to know the actual requirements of the essential duties associated with a job and what needs to be done to allow the employee to perform those duties. The person’s doctor is not generally in a position to know whether a person can perform the essential duties of a particular job, or the other considerations that the employer may have to take into account.

The [employee] is correct that an employer cannot simply disregard information about an employee’s restrictions and abilities. If an employer has doubts about the information provided, it is obliged to seek clarification. However, an employer is not required to simply accept a doctor’s opinion about how the accommodation can best be accomplished.

In this case, [the doctor] was able to provide medical information about the [employee’s] restrictions and abilities, but was not in a position to know all the considerations about the trip.

The employee’s allegations were dismissed.

The role of a physician in determining the issue of accommodation is considered in section 14:604 of the Illness and Absenteeism manual and its supplement.


 

An arbitral award was quashed where it required the employer to prove that an employee who was terminated for culpable absenteeism was not ill at the time of the termination.

Telus Communications Inc., 2013 ABQB 355 (CanLII) (Alta. Q.B.) involved an application for judicial review of an arbitral decision that had substituted a one month suspension for a termination.

The employee had been denied a one day leave of absence to play in a slo-pitch tournament. He then texted his employer on the day of the tournament to say that he could not make it in due to unforeseen circumstances. The employee’s manager attended at the tournament and observed the employee pitching ball. When confronted the next day, the employee stated that he had diarrhea and that he had gone to the tournament but not played. When confronted with the manager’s observations, he stated that he had been pitching but not batting.

In quashing the award, the Court stated that the arbitrator had erred when he concluded that the employee’s account of his illness was plausible. In reaching that conclusion, the arbitrator stated that the employer “had no evidence that [the employee] had not been sick during the night and early morning or did not have to use the washroom at the ball park …” The Court stated that “the arbitrator’s approach to determining the question of the [employee’s] illness was unreasonable. In essence, the Arbitrator required the Employer to prove a negative, namely that the [employee] was not sick. This places an unreasonable burden on the [Employer].”

The Court also stated that “the arbitrator proceeded on the basis that the [employee] was in fact sick on the day in question, a conclusion I have found to be unreasonable … I also find that the arbitrator’s conclusion that the trust relationship between [the parties] could be repaired was unreasonable.”

The award was quashed and the termination of the employee was upheld.

The issue of conduct inconsistent with an illness is considered in sections 2:400, 6:601 and 17:203 of the Illness and Absenteeism manual and its supplement. The onus regarding the establishment of an illness is considered in section 6:301 of the manual and supplement.


 

The improper demotion of an employee who was suffering from chronic anxiety was not sufficient to establish discrimination on the part of the employer.

In Cape Breton Regional (Municipality), 2014 CanLII 27761 (NS LA) (Richardson), an employee of 34 years was suspended for one day and demoted from the position of working foreman to that of utility service.

The employee had, unbeknownst to the employer, been diagnosed with an anxiety disorder some eight years earlier. After having been advised of the suspension and demotion, the employee went to see his family doctor. He was given the following note: “Off work for medical reasons – indefinitely at present.” The employee then went on sick leave. A further medical certificate, provided after five days of absence, stated that the employee was suffering from “anxiety disorder – recent exacerbation of chronic anxious state.” That same doctor provided the following statement in support of the long term disability application that the employee made approximately four months after he commenced his sick leave: “[primary diagnosis] anxiety disorder … possible social anxiety d/o panic disorder without agoraphobia.”

The employee was subsequently reinstated in the working foreman position and returned to work after an absence of approximately nine months. The essence of the grievances that were filed alleged that the one day suspension was not justified, that the demotion was improper, and that the employer should compensate the employee for losses sustained. These included the depletion of his sick leave and the reduced income that he received for the period when he was receiving employment insurance sick leave benefits. Benefits received during the period of absence were calculated based on the employee’s earnings as a working foreman.

The arbitrator found that the one day suspension was justified but that the demotion was not.  He stated that the central issue was whether the employee’s nine month absence on sick leave was attributable to the fault of the employer. In that regard, the union contended that the employee went on sick leave because of the harassment and discrimination he was suffering at the hands of management. 

In rejecting that contention, the arbitrator stated:

[The fact that the employee was improperly demoted] does not mean that there was “discrimination” of any kind, let alone within the meaning of the HRA [the Human Rights Act]. Discrimination is not free floating. It is tied to specific conduct and to a specific disability. What happened here is that the Employer sought to discipline the [employee] for conduct it thought warranted discipline. It was the conduct, and not the condition, that attracted the discipline. The Employer did not discipline the [employee] – or discriminate against him – because he suffered from an anxiety order. The fact that the Employer may have made the wrong decision … was not necessarily evidence of harassment or discrimination. At best it was simply an error of judgment on management’s part.

In saying this I accept that discrimination does not have to be intentional … It remains the case however that the employee has to establish the existence of a disability; that there was a differential impact; and that the impact was the result of his or her having the disability in question.

… in my opinion, the [employee] needed more than simply the fact that he suffered from chronic anxiety, and more than the fact that he had been suspended for a day and demoted, to establish harassment or indirect discrimination – or to establish that he was off work for nine months because of it. There are several reasons for this conclusion.

First, there is the fact that the [employee] was able to work since 2003 (when he was diagnosed with chronic anxiety), notwithstanding the conduct of management that he complained of, and notwithstanding several prior disciplinary actions against him, without time off due to anxiety. Such evidence supports a conclusion that the [employee] had a reasonably robust tolerance for any stress he experienced in the work place – whether from management or the job itself. It does not explain why the stress associated with another bout of discipline would suddenly be too much.

What direct evidence there was about the nature and extent of the [employee’s] anxiety disorder – and more importantly, the extent to which it interfered, if at all, with his ability to work – came from the [employee] himself. And this evidence was at best weak. He testified at one point that he woke up in sweats, and couldn’t sleep at nights, but he did not clearly link those episodes to the suspension and demotion.. Nor did he explain what it was about his anxiety disorder that was different in the period in question from the years before. After all, the [employee] had the disorder since 2003. He was able to work, albeit with the assistance of medication and counselling from time to time. He served as a working foreman, a position that no doubt carries with it some stress during the period 2003-2011 without any apparent difficulty. One may accept that the meeting with his supervisors in December 2011 perhaps brought with it more stress than he might normally experience in his job, but even if so, there was no evidence to support a conclusion that the increase in stress lasted for more than a day or two – and no explanation for how or why any increased stress level would have lasted only as long as he had sick leave and Employment Insurance benefits to draw upon. Nor was there any explanation for why this disciplinary episode would have so exacerbated his anxiety as to cause him to go off on sick leave for nine months when previous episodes had not.

Second, the [employee] provided only a few examples of what he considered to be harassment … It is important in the context of labour relations to distinguish between workplace friction between management and employees, on the one hand, and harassment on the other. The existence of the first does not necessarily equate to the existence of the other. For the same reason poor management practices or decisions do not necessarily represent harassment. In this case what little evidence the [employee] did provide of “harassment” established no more than the existence of friction between him and one or more of his supervisors. It did not establish harassment.

Third, on the evidence the event that triggered the disabling exacerbation of the [employee’s] chronic anxiety (if that is what happened) was neither the discipline nor the alleged harassment that preceded it. Rather, it was the [employee’s] realization that he would have to tell his wife about the demotion … On the [employee’s] own evidence then it was the stress associated with telling his wife, rather than the discipline itself – and rather than his relationship with [his superiors] – that heightened his anxiety to the breaking point. But that still does not explain why the increased anxiety would have lasted much beyond the time that it took to confess what had happened to his wife.

Fourth, as a general rule, an employee who says that an employer’s actions have a discriminatory impact on him or her because of a physical or mental disability has an obligation to reveal that fact to the employer (at least where the disability is not on its face apparent). By doing so the employee can trigger the employer’s duty to accommodate, a duty in which the employee is expected to cooperate. Here, however, there was no evidence that the Employer knew or should have known of the problem …

There was in short no evidence that the grievor remained off work as long as he did because his chronic anxiety had been exacerbated to the extent that he could not return to work for nine months …

The arbitrator concluded that the grievance must fail because the employee had failed to establish that the employee was put off work, and kept off work, for nine months because of discrimination on the basis of a mental or physical disability or harassment on the part of the employer.  

The issue of anxiety disorder is considered in section 2:301 of the Illness and Absenteeism manual and its supplement. Factors that relate to whether or not discrimination has been established are considered in sections 14:201 and 14:300 of the Illness and Absenteeism manual and its supplement. The concept of harassment is considered in section 14:201 of the manual supplement.       


A discriminatory rule that had been adopted in a large automotive complex was upheld on the basis that it amounted to a rational solution to address a shortage of temporary positions for employees who were temporarily disabled.

The employer, in Chrysler Canada Inc., 2014 HRTO 845 (CanLII) (Cook), had, with the concurrence of the union, adopted a Return to Work and a Modified Work Plan, both of which were extremely complicated.

Central to one or both were the following provisions:

  1. The four week-eight week cycle: On a typical day, there may be about 40 to 50 non-standard (i.e. temporary) jobs that need to be done, while there may be 80 to 100 employees who are capable of working with restrictions but for whom a permanent position has not been found. There also may be 40 to 80 employees with temporary restrictions who cannot do their regular jobs. Given that there were not enough available jobs to distribute to all, the employer and the union implemented a “four weeks on – eight weeks off” cycle. Although not rigidly enforced, the solution provided that a disabled employee would work four weeks on in either one of the temporary positions, in some other suitable job, or if nothing could be found, the employee might perhaps be assigned to reviewing manuals or just sitting in the cafeteria for part of the time. If a permanent suitable job had not been found by the end of any four week period, the employee would be sent home for up to eight weeks. The cycle would then be repeated.

For the eight week period, employees would be entitled to wage loss benefits through workers compensation if the disability was work-related, sickness and accident benefits if the disability was not covered by Workers’ Compensation, or perhaps employment insurance benefits. However, this particular employee, by reason of the circumstances involving his disability, did not receive any of these benefits during the periods of absence.

  1. The 90 day rule: This rule provided that if an employee had temporary restrictions that lasted more than 90 days, the restrictions would, at that point, be deemed to be permanent, with the result being that the employee would cease to own his regular job and must then participate in a search for a new permanent job. At that point, the employee could then bump into a suitable job that was held by a more junior employee. However, an employee with temporary restrictions of 90 days or less did not have the right to bump.

The employee’s human rights complaint focused primarily on the following allegations:

  1. The four week- eight week rule discriminated against the employee.
  1. It was discriminatory to not allow a disabled employee to displace a co-worker with higher seniority.
  1. The employer refused to consider modifying a regular job so that the employee could do such job.
  1. The employee was discriminated against because he did not receive any benefits during the periods that he was sent home.
  1. The 90 day rule was discriminatory.
  1. The rule imposing restrictions on bidding on temporary jobs discriminated against the employee.

The adjudicator concluded that the four week-eight week cycle needed to be considered in the context of a complex industrial operation involving a great many people and complicated systems. It “was a rational solution” to the basic problem of the number of disabled employees significantly exceeding the number of temporary jobs that were available. The rule “was designed as an equitable system to ensure that all disabled employees have access to the limited non-standard jobs that are available.”

The adjudicator rejected the employee’s assertion that the duty to accommodate requires employers and unions to allow a disabled junior employee to displace or bump a senior employee.

Under the Code, if a disabled employee cannot do his regular job, the employer is first obliged, in conjunction with the employee, to see whether the employee can continue to do the regular job with accommodation. If that is not possible, the employer is obliged to look for other jobs that the disabled employee can do. That obligation can include measures that impact on other employees, for example as a result of changing job duties of other employees to accommodate the disabled employee. However, the duty to accommodate does not include an obligation to displace another employee out of his or her job …This is true in non-unionized and unionized workplaces …

On the issue of modifying a regular job, the adjudicator concluded that there was no evidence that the employee had sought such a modification.  However, the fact that the employee did not receive any benefits for the two eight-week periods when he was sent home was discriminatory. Replacement benefits were an important element of the negotiated Modified Work Program and the employee’s differential treatment was related in part to the nature of his disability.

The 90 day rule stipulated that a medical restriction of three months or longer was deemed to be a restriction of indefinite duration. The 90 days did not commence until the employee’s status became one of temporarily partially disabled following the employee’s return to the plant. Under the rule, “Temporary restrictions that last for 90 days are thus deemed to be permanent … An advantage of the 90 day rule is that an employee who will not be able to return to the pre-injury job because of restrictions of “indefinite duration” can start the process of finding a new permanent standard job after 90 days. A disadvantage of the rule is that an employee with temporary restrictions that resolve after 90 days has lost a job that he or she owned.”

The adjudicator accepted that the rule was discriminatory, for in this case, the employee could likely have returned to his pre-injury job had he still owned it.

A disabled worker who was not working in a standard job could bid on temporary vacancies, but a disabled worker who was placed in a standard job could not. The rationale for this provision “was that the worker would have given up the standard job in order to take the temporary job and thus have no job to return to at the end of the temporary job posting. The worker then has to go back into the Modified Work Program and start a new search for a permanent standard job.” Given that the employee was prevented from bidding on such jobs, he was adversely affected by what was a discriminatory rule.

The adjudicator ordered that the employer pay the employee income benefits for the two eight-week periods along with $7,500 to compensate for injury to dignity, feelings and self-respect.

Considerations applying to matters of temporary accommodation are considered in section 14:470 of the Illness and Absenteeism manual and its supplement, while matters related to damage awards are considered in section 14:702 of the manual and supplement.


 

An employer who terminated an employee on the basis of abandonment or being absent without leave was not entitled to assert that the termination should be sustained on the ground of excessive absenteeism.

In Hiway Fuel Services Ltd., 2014 CanLII 37908 (BC LA) (Dorsey), the employee was allegedly absent without leave for a period of 11 months after his long term benefits ceased. At that point, he was terminated on the basis that he had either abandoned his position, or alternatively, that his employment was being terminated on the basis that he was absent without leave. The employer subsequently accepted that the employee did not abandon his employment, and the arbitrator concluded that there was no basis to terminate the employee as having been absent without leave.

The employer had also asserted, some-time after the termination, that the employer was also entitled to terminate the employee on the basis of innocent absenteeism. However, the employer had not given the employee notice of a pending termination nor had it inquired about the prospect of the employee returning to work in the foreseeable future. The assertion of innocent absenteeism as cause for termination was not sustainable.

The relationship between the parties had been acrimonious, and the arbitrator concluded that reinstatement would not be in the interest of the parties. Further, shortly before the hearing, the employee had been awarded a 100% disability pension under the Canada Pension Plan. “With knowledge of that development, the employer would have been justified in concluding [the employee] would not be returning to work and consider dismissing him for innocent absenteeism.” The employee was awarded wage loss replacement benefits to the date that he qualified for the 100% Canada Pension Plan benefits, along with $4000 damages for what appeared to be injury to his feelings, dignity and self-respect.

The matter of termination for innocent absenteeism is considered in section 17:300 of the Illness and Absenteeism manual and its supplement.