In this edition you will find:
A. Feature Case: An employer seeking production of an employee’s medical documentation must particularize its request and must demonstrate a clear nexus between the documents sought and the factual matters in dispute at the arbitration. [Click here]
B. Recent Decisions of General Interest:
A. Feature Case: An employer seeking production of an employee’s medical documentation must particularize its request and must demonstrate a clear nexus between the documents sought and the factual matters in dispute at the arbitration.
In Dufferin Concrete, 2015 CanLII 68945 (ON LA) (Luborsky), the employer sought production of documents and notes from the employee’s medical file that were arguably relevant to the issues raised in the grievance. After reviewing many arbitral authorities regarding production of documents, arbitrator Luborsky summarized those principles that were relevant to the case at issue:
Thus the authorities indicate that production of inherently private medical information should only be ordered if “arguably relevant” to the matters directly placed in issue by the circumstances and claims of the grievance. There must be demonstration of a clear nexus of the specific documentation requested to the factual matters in dispute that is real as opposed to notional or potential, with minimal intrusion into the employee’s medical affairs, so to properly reflect the appropriate balancing of important interests where the private information of an employee is involved. An employer’s request for the production of personal medical documentation must also be sufficiently particularized and not unduly prejudicial to the employee, failing which a request of this nature should be denied.
The arbitrator issued a production order for “all arguably relevant documentation in [the doctor’s] medical file”, accompanying it with a direction that the employee was to authorize the production of such documents.
The union had argued that each of the six medical notes that had previously been provided to the employer ought to have been dispositive of the matters at issue. The arbitrator rejected that approach, stating:
In the absence of specific provisions in the collective agreement giving a physician’s note or report the status of having a conclusive impact on the question of an employee’s fitness to return to work after disability and/or the terms of an appropriate “work hardening” program, a physician’s note at arbitration is only one piece of evidence on the matter that is subject to challenge and/or clarification on a number of points that may impact the weight that an arbitrator can properly give to that evidence … Once the Grievor and/or Union has placed medical notes before the Employer (and ultimately the arbitrator), the Union has opened the door to the proper admission of all of the documentation that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor’s medical file arguably related thereto. This may include information evidencing the physician’s knowledge of the physical demands of the Grievor’s job, records of meetings with the Grievor (including what the Grievor is reported to have said to his physician on the matter), clinical notes of physical examinations, testing and other assessments the physician may have conducted in coming to the specific conclusions or recommendations reflected by the medical notes presented to the Employer. Such documentation, to the extent it may exist, does not expose the Grievor to an unreasonable intrusion into his private medical condition that is outside of the scope of the matters placed directly in issue by the Grievor’s own submission of his doctor’s medical notes, and thus the Employer’s production request is not a “fishing expedition” as suggested by the union.
The arbitrator stated that to maintain proper respect for the privacy of such documentation, dissemination was to be restricted to “the Employer’s counsel and its key advisors having carriage of the grievance on behalf of the Employer, with the further dissemination of those relevant parts of the documentation on a “need to know basis’ to support potential responding evidence by the Employer, including the possibility of its referral for expert assessment and testimony, all of which is conditional on the deemed undertaking of all recipients of the medical information that the documentation will be kept confidential and only used for purposes of the present grievance proceedings, at the conclusion of which all such documentation in the Employer’s possession or control shall be returned to the Grievor or destroyed.”
The issue of production of medical documents in the context of an arbitration is considered in section 10:209 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest:
In Nenan Dane Zaa Deh Zona Family Services Society, 2015 BCHRT 116 (CanLII) (Blasina), the employee had been the employer’s executive director. In challenging his termination for cause, he alleged that he had been diagnosed with obsessive compulsive disorder (“OCD”), that he was an alcoholic and that his condition was at the root of the offensive communications that he levelled at the provincial funding agency. He contended that the employer was aware of his disabilities and that he should have been accommodated rather than terminated.
The adjudicator found that the employee was not a credible witness. On the issue of establishing a prima facie case of discrimination, the adjudicator commented that medical evidence is normally but not always required:
… A person may have a disability that is self-evident, and hence the proof of it may not be an issue. However, the disability may not be self-evident, particularly where a mental disability [including alcoholism] is alleged … So although not absolutely necessary, medical or expert evidence or medical evidence may be an important part of the evidentiary burden on a complainant … Medical evidence may be required both to establish the disability, and to establish that there is a link between the disability and the adverse treatment. A complainant’s self-assessment and self-reporting may not be enough.
The adjudicator stated that the employee here provided no medical evidence to support his claims that he was addicted to alcohol and that he had OCD. He claimed that he drank to the point of “blackout,” and that the employer knew that he was addicted to alcohol. In concluding that the employee had failed to establish a prima facie case on the basis of an addiction to alcohol, the adjudicator stated:
[The employee] was not a credible witness, and considering the above circumstances, … it was incumbent on him to provide medical or expert evidence to establish or corroborate that he has an alcohol addiction. His self-assessment and self-reporting is insufficient. I cannot conclude that he has an alcohol-related physical or mental disability; and based on the evidence, I find that he was not perceived to have an alcohol-related physical or mental disability.
On the employee’s claim that he suffered from OCD, the employee “provided no medical or expert evidence of a diagnosis of OCD. He testified his counsellor diagnosed him with OCD. This was hearsay evidence, and it is questionable whether the counsellor would be qualified to diagnose OCD as a mental illness or disability. He testified that his family doctor prescribed Paxil, which he stopped taking after the prescription ran out.” The adjudicator stated:
In sum, by failing to provide medical or expert evidence, [the employee] failed to establish he has OCD, or the nature of his alleged OCD, or how it affected or would have affected his behaviour. Even if he has OCD, there is no medical or expert evidence which establishes that his OCD constitutes a disability under the Code …, or that the behaviour for which he was terminated was linked to his OCD. Without such evidence, [his] self-assessment and self-reporting is again insufficient …
The complaint was dismissed on the basis that the employee had not established a prima facie case of discrimination.
The need to adduce medical evidence to establish a prima facie case is addressed in section 14:410 of the Illness and Absenteeism manual and its supplement,
2. An employer was held to have discriminated against a pregnant employee when its rationale for termination was found to lack credibility.
In 2347656 Ontario Inc., 2015 HRTO 1041 (CanLII) (Martin), the employee alleged that her manager confronted her with a rumour that she was pregnant, and when she acknowledged that she was, she was terminated contrary to the Code.
The employer contended that it had legitimate business reasons for the termination. The adjudicator concluded that there was no credible evidence that “legitimate business reasons were the sole reasons for the [employee’s] termination.”
No termination letter was issued. The adjudicator concluded that the key findings turned primarily on the credibility assessment of the employee and the store manager. The employee was found to be credible; the manager was not. On the key issues, the adjudicator did not find the manager’s account “of what transpired to be in harmony with what is reasonable and probable in the circumstances. The limited details of the alleged performance concerns, the inconsistencies between his account in his oral evidence and his write-up of the termination, the absence of documentation and the failure to preserve some of the evidence all contributed to undermine the credibility of his account.”
The adjudicator also stated that the employer’s late disclosure of alleged performance issues, made for the first time on the second day of the hearing, was, in the absence of a reasonable explanation, very problematic. She concluded that the employer has “not provided a credible explanation demonstrating, on a balance of probabilities, that its decision to terminate the [employee] was solely because of “issues that arose after the [latest] performance evaluation and that pregnancy played no role in the decision to terminate.”
The employee was awarded lost wages based for the time that she would have worked until the start of her intended maternity leave plus $ 20,000 as monetary compensation for injury to her dignity, feelings and self-respect.
The approach to establishing that an employer discriminated, at least in part, on the basis of pregnancy, and the damages that are awarded for such discrimination, are considered in sections 14:410 and 14:700 of the Illness and Absenteeism manual and its supplement.
3. An employer discriminated against an employee when it terminated her employment on the basis of a perceived (as opposed to a proven) disability. Monetary compensation for injury to dignity, feelings and self-respect was set at $20,000.
In J.A. Kaytor Holdings Inc., 2015 HRTO 1119 (CanLII) (Renton), the adjudicator concluded that the employer perceived the employee to have a disability or medical condition that would negatively impact on her attendance and would create difficulties in covering her absences. The employee was perceived as being a good employee with good attendance. However, on her first day back at work after having missed two shifts for medical testing involving what turned out to be a diagnosis of chronic obstructive pulmonary disease, the employee was terminated for what the employer characterized as a tantrum or fit. Her conduct was considered to be disrespectful, abusive and contrary to the employer’s harassment policy, and was, in the employer’s submission, cause for her termination. The employee however attributed the termination to her disability.
The employee was considered to be generally credible, while the employer was said to be otherwise because “his evidence was at times, inconsistent, vague and forgetful.” Although the employee had not been diagnosed with a disability as of the date of her termination, the adjudicator concluded that the employer perceived the employee “to have a disability or medical condition that would interfere with her work, and/or her ability to attend work as of [the date of her return].”
The employee was awarded $15,000 as compensation for injury to dignity, feelings and self-respect, plus lost wages until the date she obtained full-time employment approximately 14 months after her termination. The adjudicator noted that the $15,000 damage payment was to be treated “similar to general damages in that no deductions are to be made from it.” That was to be distinguished from Employment Insurance repayment obligations that flowed from an award for lost wages.
Establishing that an employer discriminated, at least in part, on the basis of a perceived rather than a proven disability, is considered in section 14:310 of the Illness and Absenteeism manual and its supplement.
In Northern Regional Health Authority, 2015 MBHR 3 (CanLII) (Walsh), a terminated health care aide was reinstated because the employer failed to establish that it had accommodated her addiction to the point of undue hardship.
The employee, who had been suspended without pay due to alcohol abuse, was offered reinstatement on the terms set forth in a proposed last chance agreement, one of which was a requirement that she totally abstain from alcohol consumption. The employee was terminated after she refused to sign the agreement. Her refusal to commit to the employer’s “rehabilitation terms” and the employer’s concerns regarding patient safety in the operation of its personal care facility were among the reasons cited for its decision.
Nine months later, the employee was reinstated after she relented and signed a slightly revised agreement. Shortly thereafter, she was again terminated after it was reported that she had been drinking once again.
At the subsequent grievance hearing, the employee’s addictions counsellor testified that her Foundation’s counsellors “do not promote abstinence as the only method of treatment because while abstinence based treatment is valuable for some people, it is not for all clients because … everyone is an individual.” She testified that in the context of her Foundation’s program, “if a person does not plan on being abstinent forever, it is best to reintroduce responsible drinking while still in contact with a counsellor so that the counsellor is there should issues arise and that this is precisely what the [employee did].”
In considering whether the employee had established a prima facie case of discrimination, the adjudicator noted that
Clear and cogent medical evidence is generally required to establish that a person has an illness or disability … However the concept of disability under the Code must be interpreted in a broad and flexible manner …
No medical evidence was adduced “from a medical professional to establish that the [employee] had an addiction and the evidence about the exact extent and nature of her addiction was somewhat limited.” However, the adjudicator stated that the evidence of the employee and her program counsellor demonstrated that the employee “had struggled with the overuse of alcohol such that it interfered with her functioning and activities of daily life.” Moreover, the employer had acknowledged that the employee had suffered from an addiction to alcohol. A prima facie case of discrimination had been established.
The adjudicator then found that the employer had not demonstrated that “it accommodated the [employee] to the point of undue hardship or that the requirements that it imposed as pre-conditions to rehiring represented bona fide occupational requirements.”
The adjudicator noted that in preparing the last chance agreement, the employer did not make an individualized assessment by seeking advice from the employee’s addiction’s counsellor or other professionals. Instead, it relied on the experience of its management staff in dealing with other addicted employees who had required accommodation. The adjudicator stated that “information of that sort is precisely the type of information that cannot be relied on as the basis for accommodating an employee. Each individual is entitled to an accommodation which is based on an individualized assessment of his or her specific needs.” The condition requiring total abstinence and one that required the employee seek mental health counselling did not consider the employee’s specific needs. It was significant “that an independent expert was not retained by the [employer when] it considered the terms on which it would allow the [employee] to return to the workplace.”
The employer called a psychiatrist to testify about the science of addiction and to establish that the employer’s conditions were reasonable. The adjudicator rejected his evidence on the basis that “an employer cannot justify the reasonableness of its actions by pointing to information it did not rely on at the time it carried out its efforts of accommodation.”
The adjudicator accepted that “relapse is a recognized part of “alcohol use disorder.” By failing to include a term that provided for the possibility of relapse, the employer failed to demonstrate “that it made reasonable efforts to accommodate the [employee’s] disability and associated special needs.”
The adjudicator further stated no evidence was lead to suggest that accommodating the employee by “placing her on a medical leave of absence … instead of firing her was not a viable alternative or would have resulted in undue hardship … Doing that would have allowed the [employee] to feel more secure in pursuing a course of treatment and would have put her in a better position to discuss the terms on which she could return to the workplace…”
The adjudicator acknowledged that while the employer had been prepared to place the employee on a medical leave, the offer was made in the context of a comprehensive agreement that required agreement on all of its terms. The offers “were not presented to the [employee] in the first instance as part of a plan that would have allowed her to seek treatment …” As such, an offer to be placed on medical leave retroactively did not “go toward satisfying the [employer’s] obligation to demonstrate that it made reasonable efforts to accommodate the [employee].”
On the matter of undue hardship and the issue of safety risks to residents, the adjudicator stated that the employer “provided no evidence that it took any proactive measures to minimize safety risks associated with returning the [employee] to the workplace.” As an expert had testified, “a commitment to abstinence is not a guarantee of sobriety in the workplace.” The adjudicator commented that returning the employee on the basis of signing an abstinence clause would not have relieved the employer from its “duty to take positive measures to meet its statutory safety obligations.” She noted that there was no evidence presented to demonstrate that the employer had considered such safety-related measures.
On the issue of enforcement of last chance agreements, the adjudicator commented that where they had been upheld, the arbitrator had, in many of the cases, specifically found that the employer had previously accommodated the employee on numerous occasions before finally terminating the employee’s employment. In those cases, the employers had given their employees “a first chance, a second chance, and sometimes a third chance before terminating their employment.” She also noted that many of those cases involved “repeated workplace performance issues on the part of the employee before the employee was fired. That was contrasted with the evidence here, for the only evidence that had been adduced was that the employee had reported to work once while under the influence of alcohol, and that there were no performance issues or concerns regarding the employee’s ability to perform her duties in the workplace.
The employer had also argued that the terms of the settlement agreement (and in particular, the abstinence clause), were bona fide occupational requirements. The adjudicator referenced the Supreme Court of Canada decision in Meiorin as the test to be used in establishing a bona fide occupational standard or requirement. The adjudicator found that the first step of the test was met, for it had demonstrated that there was a rational connection between the general purpose for which the impugned standard was introduced and the objective requirements of the job, with the general purpose in imposing the terms of settlement being to satisfy the employer’s obligation to maintain a safe workplace. Regarding the second step of the test, it was met, for the employer believed that the proposed terms “were reasonably necessary and that it was not motivated by anything other than an honest and good faith belief that this was so.” However, the adjudicator stated that the third part of the test was not met. The impugned requirement was not reasonably necessary for the employer to accomplish its purpose, for the employer failed to establish that it could not accommodate the employee and others adversely affected by the standard without experiencing undue hardship. Consequently, the employer failed to demonstrate that the requirements it imposed on the employee were bona fide occupational requirements.
Damages for injury to dignity, feelings and self-respect were set at $10,000. The employee was reinstated, and lost wages were ordered for the period from the date of her initial suspension until her reinstatement approximately four years later. Excepted from the lost wages calculation was a nine month period where the adjudicator surmised that the employee would likely have been unable to work because of her need to undergo rehabilitative treatment prior to returning to work. In the result, the employee recovered approximately three years and four months of lost wages.
In Lilydale Inc., 2015 CanLII 57060 (SK LA) (Hood), the employee was terminated pursuant to a last chance agreement. Rather than challenge the agreement, he took the position that he did not breach it, and further, that if he did, there were compelling reasons to depart from the strict enforcement of its terms. The wording of the agreement provided in part as follows:
… This agreement is entered into as a condition of continuing employment for [the employee] … In lieu of terminating his employment, the Employee agrees to refrain from the following inappropriate conduct …
The employee understands that his continued employment is dependent upon him refraining from the inappropriate conduct listed above and demonstrating effective performance of his duties. Failure to do so will result in immediate termination of employment.
The arbitrator noted that a subsequent provision in the agreement provided that the employer may immediately terminate the employee’s employment for a breach of the agreement. The fact that the latter provision was somewhat equivocal did not, in his view, “undermine the clarity and interpretation of the last chance agreement in the circumstances.”
The last chance agreement also provided that if the employee disagreed with instructions communicated by a supervisor, he was not to object but to follow such instructions and later discuss his concerns with the appropriate manager or union representative.
In considering the enforceability of such an agreement, the arbitrator referred to Saskatchewan decisions that considered whether, in Saskatchewan, a last chance agreement signed by the parties became part of the collective agreement. He ultimately concluded that it did and that the specific penalty referred to therein deprived him of jurisdiction to substitute a lesser penalty:
There is no jurisdiction in the circumstances to substitute a penalty less than the penalty agreed to in the last chance agreement. I conclude this for the following reasons. In my view, the Last Chance Agreement is part of the Collective Agreement between the Employer and the Union, and in this case, is a tri-party agreement as it also involves the Grievor. It contains a specific penalty for a specific infraction. The infraction, in this case, is inappropriate conduct as defined in the Last Chance Agreement. The legislative authority providing an arbitrator to substitute any other penalty applies only if the collective agreement does not contain a specific penalty for such infraction.
The arbitrator concluded that “in this case, the parties have agreed that the consequence of this inappropriate conduct is termination” and that he had “no authority to change this Collective Agreement or any of its parts, including the Last Chance Agreement to which the parties have agreed.”
The issue of the enforceability of last chance agreements is considered in Chapter 16 of the Illness and Absenteeism manual and its supplement.