In Chicopee Manufacturing Ltd. (2012), 224 L.A.C. (4th) 78 (Snow), the arbitrator considered whether a “deemed quit” provision treated disabled employees differently and more harshly than those who were not disabled, and whether the grievor fell afoul of the “deemed quit” provision because he was disabled. Despite a lack of any real evidence on these points, the arbitrator answered both of these questions in the affirmative.
In doing so, the arbitrator stated:
Addressing the first issue, if an employee is disabled, as the grievor was, the Code does not prevent the Employer from firing that employee for reasons unrelated to the disability. The Code also does not prevent the Employer from relying, in some cases at least, upon some deemed quit provisions. What the Employer cannot do is rely on a deemed quit clause if the deemed quit provision has a harsher impact on the disabled.
I accept the Court’s view in Etobicoke [Etobicoke General Hospital [104 D.L.R. (4th) 379 (Ont. Div. Ct.)] that disabled persons are more likely to be absent from work for an extended period than are employees who do not have a disability and a deemed quit clause triggered simply by an absence has an adverse impact upon the disabled. I accept that such a provision is discriminatory and contrary to the Code.
… Does this provision treat the disabled more harshly? I had no evidence on the impact of this provision generally …
Can I conclude that this “deemed quit” provision has an adverse impact upon the disabled in the absence of any actual evidence to that effect? Frankly this issue troubles me. Like most arbitrators, I prefer to make decisions based on evidence. However the labour arbitration process is set up with the intention that arbitrators will use common sense and not require that every fact be proven. This is sometimes described as taking arbitral notice of certain facts. I note that the Court in Etobicoke referred to no evidence to support its conclusion that the disabled were discriminated against by that deemed quit provision. Likewise, I am prepared to conclude that disabled employees such as those who abuse alcohol and drugs and those with serious mental health issues are more likely to fail to notify the Employer of an absence than are those employees who are not disabled. These disabled individuals show up more often, as has this grievor, in deemed quit cases.
It follows then that I conclude that this deemed quit provision has an adverse impact on disabled employees.
The arbitrator then considered whether the employee’s disability was the reason he failed to secure permission. Was it “the reason he stopped obtaining permission [during the relevant period]?” He stated that there was no medical or other evidence to suggest that the employee’s condition had changed in any material way. In addition, the employee “offered no specific evidence about why he stopped calling to secure permission for his absences.” The arbitrator stated:
Admittedly the evidence is quite vague on this point, however I can only conclude that the reason the grievor stopped calling was because of his disability, what [his doctor] diagnosed as “major depressive disorder with poor sleep …” That is, while I do not think it was beyond the grievor’s control to call, as a practical matter I find the reason he did not call was his disability.
In summary I conclude that that the application of this collective agreement deemed quit provision discriminates against the disabled under the Human Rights Code and that the grievor was discriminated against for reasons related to his disability. It follows that the Employer cannot rely upon it to conclude that the grievor has quit his job.
The arbitrator ordered that the employee be reinstated as an employee without loss of seniority or benefits but without any back pay. The employee’s actual return to work was to be dependent upon the employee being cleared by his physician as being medically fit to return to work.