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Illness and Absenteeism Newsletter – February, 2013 Edition

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…


Featured Case: Arbitrator upholds an Employer’s requirement that a grossly overweight Employee, who was at risk for adverse cardiovascular events and ongoing mechanical back pain with a potential for neurological compromise, was required to engage in a medical accommodation plan, to improve his overall health, before being  entitled to return to work: Teck Coal Limited, 2012 Can LII 71111 (AB GAA) (Lucas)

The employee, who was 85 to 90 pounds overweight, drove a “rock truck” in the employer’s mine. The job involved considerable “physical jarring,” and the employer took the position that the employee’s medical condition militated against a reinstatement unless the employee entered into an accommodation agreement intended to address such concerns.

In a preliminary decision, the arbitrator directed that the employee attend an Independent Medical Examination. The resultant report was provided to both the employer and the union.

On the basis of that report, the employer prepared an Accommodation Agreement and Plan and forwarded it to the union for its consideration.

The union took the position that the employer had no “right to implement the Accommodation Agreement and Plan as a term of the Grievor’s return to active employment” and contended that the Accommodation Agreement and Plan and the Employer’s conduct since the provision of those two documents had not discharged the employer’s duty to accommodate the employee.

The findings of the Independent Medical Examination, along with the particulars of the accommodation plan, are set forth in the “Read More” section of this newsletter.

In the result, the arbitrator held that the employee had not fulfilled his obligation to assist in finding an accommodation, and, that in the circumstances of this case, the employer’s accommodation plan fulfilled its duty to accommodate.

Section 6:403 of the Illness and Absenteeism manual (see page 89 and following), reviews several cases standing for the proposition that “an employer may not refuse to allow an employee to return to work on the basis that the employee might suffer medical problems following her return.” In most of those cases, the employee had been cleared by her physician to return to her former position. Moreover, those cases generally dealt with the possibility of a re-injury or reoccurrence as opposed to the return putting the employee “in peril of significant and even life threatening events” were he to be permitted to return prior to mitigating his health issues.   [Read More]

 


Recent Decisions of Interest

 

1. In General Motors of Canada Limited , 2012 CanLII 78388 (ON LA) (Albertyn), the termination of a 26 year employee was set aside after she had twice failed to provide reasonably required information regarding her continuing medical condition.

Both  the earlier termination, and the one at issue, were based on a collective agreement provision that stated that an employee’s seniority will be broken “… if the employee fails to report for work within five (5) working days after any leave granted to the employee, unless a satisfactory reason is given.” The earlier termination was, by agreement of the parties, subsequently converted into a 2-week suspension without pay.

The collective agreement also contained a provision stating that “any employee who is known to be ill, supported by satisfactory evidence, will be granted sick leave automatically for the period of continuing disability, [except for employees on 36 month continuous sickness absence].” The seniority of such employees was to accumulate during this sick leave.

 Arbitrator Albertyn concluded that while the grievor had failed to provide additional medical information as reasonably required, she had not abandoned her employment pursuant to the five day absence provision, for the employer knew that the employee was absent due to sickness or injury. The arbitrator then considered whether “separation or termination was the appropriate disciplinary response by the employer to the grievor’s failure to comply with the employer’s reasonable request for medical information.” He concluded, on the basis of competing considerations, that the termination or separation could not be sustained. He awarded reinstatement without loss of seniority but without back pay. The award was to serve as a final warning for the employee to comply with the employer’s medical requirements under its existing documentation program.

The case does not discuss the many cases that have held that because of privacy concerns, failure to provide medical information does not normally attract disciplinary consequences. Rather, the appropriate arbitral response recognizes that an employee, while not normally subject to discipline, may however, suffer the consequences of her decision. This might include being held out of work, or suffering a loss of benefits, until such time as the reasonably required medical information has been provided to the employer.

As with this case, a disciplinary (just cause) approach was also taken in Calgary Co-operative Assn.(2012), 220 L.A.C. (4th) 329 (Ponak). This latter case was considered in the January edition of this newsletter.

The foregoing principles are considered in the Illness and Absenteeism manual in s. 8:204 (consequences of failing to provide medical information reasonably required); s.14:603 (nature of the medical information that can reasonably be required); and s. 16:300 (deemed termination clauses). These sections can be found in the manual at pages 179, 641 and 796 respectively.

2. Arbitrator Jeson, in Chatam-Kent Professional Firefighters’ Assn. (2012), 221 L.A.C. (4th) 1, held that a disabled employee was entitled to be placed in the only suitable available position even though the sole successful applicant had been told that he was to be awarded the position. The case was distinguished from others on the basis that the position had not yet been awarded, and as a consequence, remained vacant at the point that the disabled employee was placed in the position for the purpose of accommodating his disability. This principle is considered in the Illness and Absenteeism manual in s. 14:612 and s. 14:613, commencing at page 663.

3. In a grievance involving accommodation related to family status, arbitrator Lynk held that in light of the Supreme Court of Canada’s direction in Parry Sound, the Police Services Act provided an arbitrator with the authority to adjudicate a grievance alleging a human rights violation. See Windsor Police Services Board (2012), 221 L.A.C. (4th) 6 (Lynk).This principle is also considered at page 539 (section 14:207) of the Illness and Absenteeism manual.

4. In Alberta (2012), 221 L.A.C. (4th) 104 (Sims) , the employer admitted having breached the privacy rights of  some 26 government employees under the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 by reason of an unauthorized personal credit check. The credit checks were made in an attempt to identify a possible motive for fraudulent activity on the part of the affected employees. Each complainant was subsequently sent a letter of apology by her employer.

An Agreed Statement of Facts set forth the emotional stress that the employees had suffered:

Each of the Grievor’s suffered emotional stress in their personal lives and in the workplace. The fact that their personal credit information was accessed by the Employer’s representatives through the unauthorized use of their Dates of Birth and Social Insurance Numbers caused them to feel substantial distress, anxiety, suspicion, nervousness and distrust with respect to the reasons for and the manner in which their personal information was accessed and the uncertainty as to the identity of the individuals who actually had access to such information and whether such information remained in the possession of such individuals.

Both parties recognized that a breach of the legislation was a matter that could be adjudicated within the principles set out by the Supreme Court of Canada in the Weber and Parry Sound decisions. The Union urged that at least in Ontario, there has come to be recognized a freestanding tort of “intrusion upon a person’s seclusion or solitude, or their private affairs”, based on just such circumstances as occurred here. The Union also argued that in addition, a breach of section 8 of the Canadian Charter of Rights and Freedoms also gave rise to a remedy under Section 24 of the Charter.

The arbitrator did not rely on the Charter remedy, for Section 24(1) bars damages arising in a concurrent action in tort or in another private law claim. The arbitrator stated that ‘with this flexibility, within the bounds of rationality and reasonableness, to adapt the emerging common law approach to privacy to the organized workplace, it is unnecessary to superimpose a specific Charter analysis and Charter remedy.”

In the result, the arbitrator awarded each grievor modest damages in the amount of $1,250.

Issues relating to breach of an employee’s privacy, particularly in a matter involving illness or absenteeism, are addressed at pages 446 to 478 of the Illness and Absenteeism manual.

5.  In Benteler Automotive Canada Corp. (2012), 222 L.A.C. (4th) 407 (Brown), the arbitrator rejected the union’s contention that the employer should be required to bundle job duties to create a position for a disabled employee.

The employee suffered from compensable workplace injuries (elbow and shoulder) that prevented her from “hanging” finished automotive cables on production hooks suspended above her head. The employee alleged that the employer had failed to accommodate her. The employer’s position was that it had accommodated the employee by offering modified work related to the building and hanging of cables. It stated that that the employee had refused to try her previous job and had not bid on any of the approximately 90 jobs that had been posted during the past year. It contended that she would still have an opportunity to bid on other jobs that became available while she was off, and it encouraged her and the union to consider ways that her duties could be modified to meet her restrictions. The employer offered to do likewise.

On the issue of available job postings, the employee testified that she did not apply for any of them because her injuries prevented her from doing the full range of the jobs as required by the employer.

The employee was provided with an opportunity to work on several modified positions, but these initiatives were not particularly successful. Arbitrator Brown found that the employee had mislead the employer when she agreed, in writing, on several occasions, that she could meet all aspects of the modified positions, knowing full-well that her representation regarding her physical ability to perform the positions was not supportable.

When the employee finally stopped working on the fourth day of her latest temporary assignment because of her inability to complete the required tasks, the employee was advised that the employer had no further modified work for the employee. She was sent home and her benefits were discontinued.

In an effort to accommodate the employee, the employer had provided her with a platform to assist her in the hanging of the manufactured cables. It had also reviewed 87 bargaining unit positions but concluded that the employee could not perform any of those positions without assistance or modification. In addition, the employer also reviewed positions falling outside of the bargaining unit but none were found to be suitable for accommodating the employee.

The parties appeared to accept that one position that the employee might have been able to perform was considered to be unavailable to her because it had been retained for temporary accommodation purposes. It was to be used “to provide opportunities for injured employees to be able to return to work on modified duties for temporary periods until they are able to return to their pre-injury job.”

The union advocated that the employer should have accommodated the employee by bundling job duties so as to provide her with eight hours of work per day. In rejecting that assertion, arbitrator Brown relied on the decision of arbitrator Mitchnick in H.L. Blatchford [2005] OLAA No. 713 (Mitchnick), where arbitrator Mitchnick stated that:

In most workplaces, it remains an employer prerogative to determine what work needs to be done. Similarly, if employers can be required to ‘create’ a position, the question will inevitably arise as to where the work will come from. If the tasks are to be productive, and if they must be ones that the employer has itself identified as being necessary to its business, there is a very good chance that they are already being done by other employees. A re-allocation of tasks may give rise to concerns as between employees about the distribution of work and for employers about cost.

Arbitrator Brown then summarized his view of the arbitral law as it applied to bundling of job duties:

To meet the standards of accommodation, an employer is not required to perpetuate a modified duty position or to remove tasks from other positions and bundle into a modified position to create a full-time modified position. By so doing, it is clear that the Company would have been required to add to the head count of employees in the line operations which would result in an additional cost of employment to the Company that it would not otherwise be required and that result alone would I find, fall within the exclusionary term of undue hardship in the application of the Code. The Company is not required to sustain an appropriate accommodation of an injured employee by reforming and readjusting its production requirements.

Arbitrator Brown commented that “to accede to the Grievor’s requests for bundling of duties or a split in the job performance requirements would require an extra cost and thereby undue hardship for the Company in its operations.” The arbitrator did not cite any particular evidence addressing the additional costs that might be incurred.

The arbitrator also found that the employee had failed to make a reasonable effort to facilitate the employer’s efforts at accommodation.

On the question of benefit continuation, the arbitrator found that the employer’s insurance policy extended benefits to employee’s covered by the collective agreement provided that they were in active employment. That was not the case with this particular employee.   

The employee’s grievances were dismissed.

Issues regarding an employee’s obligation to assist in facilitating an accommodation, the distinction arising between temporary and long-term accommodation and the need to bundle job duties to create a position for an accommodated employee are reviewed in the Illness and Absenteeism manual at s.14:432 (page 519) (employee’s obligations); s.14:470 (page 591) (temporary accommodation); and s. 14:613 (page 663) (bundling of job duties). 


Speaking Engagements and Trade Shows

On November 20, 2012, Denny spoke to a meeting of the Calgary section of the Canadian Bar Association on the topic of Substantiating Employee Absences and the Utilization of Surveillance Evidence to Address Conduct Inconsistent with an Illness.

During the week of January 21, 2013, Denny attended the annual conference and trade show in Toronto that was sponsored by the Ontario Human Resource Professional Association. The Illness and Absenteeism manual was well received by those who stopped by to consider its contents. In a similar vein, Denny will be attending the BC Human Resources Management Association’s conference and trade show in Vancouver on May 1 and 2 of 2013. Delegates to that conference are invited to drop by to peruse the manual and to discuss any related illness or absenteeism questions.

Finally, on May 5, 2013, Denny will be presenting at the annual conference of the Canadian Association for the Practical Study of Law in Education (Capsle). The conference, co-sponsored by management and labour, is intended to attract educators, academics and representatives of the legal community to consider the practical application of  labour law in the education context. Denny, along with Tony Marques, a union labour lawyer with Myers Weinberg LLP, in Winnipeg, will be presenting on the topic of “Accommodation: Ten Principles That You Need to Understand.”

Denny would be happy to speak at your event or conference. Please contact us with the details of the request.