In this edition you will find…
A. Feature Case: An employer was found to have discriminated against a newly hired employee when it terminated his employment for unacceptable attendance. At the time of the termination, the employee had an absenteeism rate of 41%.
In Syncrude Canada Ltd., 2013 AHRC 11 (CanLII) (McFetridge), the employee, who had been hired eleven months earlier in a training capacity, missed over 40% of his working hours because of either migraine headaches or a broken hand incurred when he punched another person in the head. At the time of his termination, the hand had healed.
The employer advised the employee that his poor attendance suggested that he wasn’t committed to completing the training program.
The Human Rights Commission, advocating on behalf of the employee, submitted that all of the absences were legitimate and had been properly documented, that the employee had cooperated with the employer’s health and wellness advisor, and that at the time of his termination, the employee’s chronic migraine headaches were under control and his broken hand had healed. The adjudicator concluded that both the broken hand and the chronic headaches constituted disabilities under the Alberta Human Rights Act.
The adjudicator commented that although the employee had a high level of absence, the employer had terminated his employment “on the basis of innocent absenteeism despite his prospects for acceptable attendance in the future. To terminate his employment “for innocent absenteeism, notwithstanding his improved health, suggests that [the employer] perceived his past record of disability-related absenteeism represented an unacceptable risk of continued absenteeism in the future. As noted [in an earlier decision of the Supreme Court of Canada], the actual or perceived possibility of a future handicap is also a form of prohibited discrimination.”
The adjudicator stated that
… [The employer] terminated the employee’s employment for excessive innocent absenteeism. Requiring employees to meet a reasonable standard of attendance is rationally connected to job performance. The standard was adopted in good faith, in the belief that it was necessary for the fulfilment of a legitimate work-related purpose. [The employee] was a trainee and the successful completion of his training program was an important part of his job. It was on-the-job-training and he had to be at work to participate in the program.
Despite the foregoing, the law also required the employer to establish that it would constitute “undue hardship” for it to have to accommodate an employee who could not meet the required standard. The adjudicator stated:
[The employer] was understandably dissatisfied that [the employee’s] poor attendance put him behind in his training and made it unlikely that he would complete the program at the same time as the trainees he came in with. However, there was no evidence that it would have been an undue hardship for [the employer] to allow [the employee] to continue in the program … There was no evidence that [the employer] examined any accommodation options or even considered whether it would have been an undue hardship to retain [the employee] after he was cleared to return to work …
After having cited the test for termination for innocent absenteeism, as set forth in Shelter Regent Industries (2003), 124 L.A.C. (4th) 129 (Ponak), the adjudicator commented that while the employee’s absenteeism was excessive and his poor attendance had been discussed with him, he had never been warned that his continued employment was in jeopardy.
The employee had sought damages rather than reinstatement. The adjudicator determined that losses incurred during the two year period that it took the employee to achieve his former level of earnings would be an appropriate factor in assessing damages. That amount was however subject to mitigation. In addition, a 50% contingency reduction was applied to take into consideration the possibility that the employee would not have remained in the employer’s employ for the entire two year period.
General damages in the amount of $10,000. were awarded to compensate the employee for injury to his dignity and the negative effect that the employer’s actions had on his personal life.
The test used to assess an employer’s defence to a prima facie case of discrimination is considered in section 14:205 of the Illness and Absenteeism manual, beginning at page 534 of the manual. Termination for innocent absenteeism is addressed in section 17:300, commencing at page 840 of the manual.
1. An arbitrator is unlikely to permit a witness to testify via a conference call where an objecting party wishes to cross-examine the witness.
In Wanson Lumber Company Ltd., 2013 CanLII 34421 (ON LA) (Surdykowski), the Union sought to introduce two medical reports and a letter from a social worker with the John Howard Society, with the latter purporting to demonstrate “the medical condition of the grievor and also to confirm certain counselling that he has received regarding anger management.” The employer sought to have the authors called to testify. The union responded that any testimony should be given by conference call, for personal attendance would be extremely disruptive to the witnesses.
The employer relied on arbitrator Surdykowski’s decision in Cabot Canada Limited (considered at page 359 of the Illness and Absenteeism manual). There, the arbitrator ruled that “If the Union wishes to rely on any of the medical documents produced it will have to produce the authors for cross-examination.”
In this case, the arbitrator began his analysis by commenting that section 48 of the Ontario Labour Relations Act gave him authority to receive evidence by conference call testimony.
But however well others may think that may work for them, I am not in favour of hearing testimony by telephone conference call unless there is no other practical way of obtaining necessary evidence (usually because the witness is out of and either unwilling to return to this jurisdiction to testify, or because it would be prohibitively expensive relative to the probable significance of the evidence the witness is expected to give).
Oral evidence is an important part of the common law tradition, in no small part so that everyone can observe as well as hear the testimony without any filter … Although it is not uncommon for doctors or other medical health professionals to testify in a grievance arbitration proceeding, it is becoming more common for medical evidence to be received in documentary form without oral testimony from medical health professionals. This should be encouraged, not discouraged, but not because it is inconvenient for medical health professionals to testify or because it makes the process more expensive. Convenience of witnesses cannot dictate process. The process must be fair, and fairness includes the right to challenge and test the other party’s evidence regardless of how inconvenient the witnesses who provide the evidence find it, or the expense that must legitimately be incurred as a result.
I continue to hold the view expressed in Cabot Canada Limited. Although I am aware there are grievance arbitration cases in which witnesses have been allowed to testify by telephone conference call, I am not aware of any developing arbitrator practice to hear oral evidence in that manner over the objection of one of the parties … It is certainly not my practice, nor one which I am inclined to favour. As with other extraordinary procedures, absent extraordinary circumstances or good reason I will only hear oral evidence by conference call on consent.
The request to hear evidence by conference call was denied.
Issues related to the admission of medical reports without calling the author and issues relating to credibility are considered in sections 11:205 and 13:500 of the Illness and Absenteeism manual, commencing at pages 357 and 507 respectively.
2. An employer who prohibited an epileptic employee from returning to her customer service position until she provided an epilepsy-related medical clearance was found to have discriminated against that employee.
In 1552754 Ontario Inc., 2013 HRTO 716 (CanLII) (Doyle), the employer advised the employee, after an illness of three days, that she could not return to her coffee shop position until she provided medical evidence stating that she had returned to her “prior state” or “normal” health”. The employer’s actions were found to constitute discrimination on the basis of disability.
After having cited Best Buy, 2010 HRTO 1880 (CanLII), the adjudicator ordered that the employer pay the employee $4,370. in lost wages and $12,500. for loss of the right to be free from discrimination and the injury to her dignity, feelings and self-respect.
Issues related to the reasonableness of an employer insisting on medical evidence establishing an employee’s fitness to return to work is considered in section 7:302 (b) of the Illness and Absenteeism manual, commencing at page 119 of the manual.
3. A thirty day suspension was substituted in place of a termination where the employee failed to substantiate her absence from work.
In Southlake Regional Health Centre, 2013 CanLII 27285 (ON LA) (Steinberg), the employee failed to call the employer’s Attendance Support Program (ASP) as required after a five day absence from work. This led to the employee not being “picked-up” by the program for a period of approximately four weeks. At that point, the ASP began to demand medical information to support her absence. The employee submitted a medical note which the arbitrator described as “useless in that it provided no information whatsoever. It simply stated “Unknown period of time off work, under medical care.”
The employee subsequently provided some additional information but refused to execute a consent to enable Occupational Health to speak with her physician over the upcoming 12 months. After approximately four months, the employee was cleared to return to work, starting with light duties and graduated hours. However, she was held out of work pending the provision of satisfactory medical evidence to substantiate her earlier absence. Finally, four months after she was cleared to return on modified duties, the employer terminated her for having failed to substantiate her inability to return to work.
The arbitrator stated that while the employee’s cooperation was imperfect and not timely, she did in fact take steps to comply in the month prior to her termination. He stated that this differentiated her case from those where there was no cooperation at all on the part of the employee and absolutely no information forthcoming when requested.
While the arbitrator commented that discipline could not be imposed for failure to sign a medical consent, the employee’s actions (including her failure to report and her lack of responsiveness) warranted a suspension of 30 days.
The consequences flowing from an employee’s failure to execute a consent are addressed in section 4:203 of the Illness and Absenteeism manual, commencing at page 49 of the manual.
4. Requiring an employer to provide a permanently disabled employee with “make-work” duties that have been extended to those recovering from a temporary disability may constitute an undue hardship.
In TRW Canada Ltd., 2013 HRTO 1068 (CanLII) (Whist), the adjudicator concluded that there were no positions on the plant floor that could have accommodated the employee at the time that his employment was terminated. Further, there was no obligation on the employer to offer the employee short term or “make work” projects given to persons who were injured and in the process of returning to productive duties:
In my view, the respondent was not obliged under its duty to accommodate to assign the applicant to ongoing “make work” duties or duties usually assigned in order to provide employees recovering from an injury or disability with an opportunity to return to work as soon as possible and to carry out some short term work before returning to their regular duties or modified regular duties. In my view, requiring the respondent to provide the applicant with this type of work on a permanent basis would constitute an undue hardship. A similar determination was made by the Tribunal in McKee v. Imperial Irrigation, 2010 HRTO 1598 (CanLII).
Considerations that apply to a temporary as opposed to a permanent disability are addressed in section 14:470 of the Illness and Absenteeism manual, commencing at page 591.
5. A one day suspension for lateness was upheld where the employee chose to undertake personal tasks that he knew would cause him to be late.
In Tenaris Algoma Tubes Inc., 2013 CanLII 33768 (ON LA) (Randall). the employee was 90 minutes late because he chose to return a piece of rental equipment prior to coming to work. No arrangements were made with the employer, and the employee did not call to advise that he would be late. The arbitrator agreed with the employer that the employee’s conduct was egregious. The union was unsuccessful in its assertion that the employee had been subject to differential treatment.
The issue of lateness is addressed in section 17:201 0f the Illness and Absenteeism manual, commencing at page 812 of the manual.
Subscriber-Only Manual Supplement for January
The January 2014 update of the Manual Supplement has now been posted on line. The 176 page Supplement is available only to subscribers of the Illness and Absenteeism Manual. It can be accessed at IllnessandAbsenteeism.com using the reference and password that has been assigned to each subscriber.