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 reaffirms an employer’s inherent right to require an absent employee to provide confidential medical information to justify an illness-related absence: Canadian Bank Note Co. (2012), 222 L.A.C. (4th) 293 (Surdykowski)
In Canadian Bank Note Co. , arbitrator Surdykowski considered whether an employer was entitled, in the absence of a collective agreement provision, to require an employee who was absent for more than three consecutive shifts, to submit a completed ‘Medical Certificate of Disability’. He also considered the nature of the information that must be provided in that respect. He stated:
… even if the collective agreement is silent the employer may be entitled in the first instance of every case to require sufficient medical information reasonably necessary for the purpose (i.e. to justify the absence, or access sick leave benefits). Unless the collective agreement specifies otherwise, an employer is obliged to exercise discretion in that respect: that is, the employer must consider and assess the information available without a medical certificate and determine whether one is reasonably required in the circumstances.
The arbitrator commented that
… it is not always medically necessary for an employee to seek medical attention for a minor illness or injury which may nevertheless render him incapable of attending work … In the absence of a collective agreement requirement it is generally considered unnecessary, inappropriate and impractical to require every employee to [submit a medical certificate] in every case in the first instance.
… What is required in the first instance by the test of [reasonable necessity] is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect.
In addressing the scope of a medical inquiry, the arbitrator stated:
Unless the collective agreement provides otherwise, it is not inordinately invasive for an employer to ask for a medical certificate which includes the reason for the absence in issue (consisting of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms), that the employee has a treatment plan and is following that plan (but not the plan itself), the expected return to work date, and the work that the employee can or cannot be expected to perform upon his return to work … The fact that providing the nature of [an] illness or injury may suggest a diagnosis or medical history does not excuse the employee from providing the reason in order to satisfy theonus to justify the absence or claim benefits even in the first instance.
The limits on the employer’s right to confidential medical information in the first instance do not prohibit the employer from subsequently requiring further relevant and appropriate information when required in a particular case because the first instance information is insufficient or the absence is suspicious, or if accommodation is required or the employer has a reasonable concern for the safety of a returning worker or other employees. However, an employer which seeks diagnostic or other additional confidential medical information must demonstrate a legitimate need for [such specific] information on an individual case-by-case basis.
… A first instance consent for STD or other benefit purposes should not include return to work accommodation considerations other than whether there are likely to be restrictions on the anticipated return to work date.
The arbitrator affirmed the employer’s right to use a third party to gather or assess medical information on behalf of the employer. Read More
Issues regarding the content and reasonableness of requiring a medical certificate, the employee’s obligation to attend at work, and the scope of a medical consent are reviewed in the Illness and Absenteeism manual at s.7:200 (page 101) (the right to require a medical certificate); at s. 7:300 (page 116) (the need for reasonable grounds); s. 7:600 (page 152) (the scope of a medical certificate) and Chapter 4 (page 39) (medical consents). A comprehensive checklist of Factors to Review is set forth in section 7:800 of the manual (page 163).
Recent Decisions of Interest
1. In Canadian Blood Services, 2012 CanLII 59549 (AB GAA) (Jolliffe), the parties entered into a Consent Award upholding an employee’s termination for innocent absenteeism.
The employee suffered from migraine headaches. There was no medical evidence available to substantiate that the employee would be capable of regular or reliable future attendance. Efforts to accommodate the employee’s absenteeism proved futile. On the third day of hearing, the parties agreed to resolve the grievance by way of a Consent Award. That award provided that “the termination grievance is dismissed and the Employer’s decision to end the grievor’s employment on a non-disciplinary basis because of chronic, excessive absenteeism and inability to work is upheld.”
Issues regarding termination for innocent absenteeism are considered in s. 17:300 (page 807) of the Illness and Absenteeism manual.
2. In Alberta Health Services, 2012 CanLII 60197 (AB GAA) (Wallace), the arbitrator upheld an employee’s claim for insured disability benefits even though no definitive diagnosis could be established.
The employee had left on a medical leave, “complaining of chronic pain in her right elbow and numbness and burning sensations in the fingers of her right hand.” The symptoms worsened and she subsequently underwent nerve surgery. The symptoms persisted. Medical investigations by many physicians suggested some possibilities and ruled out others. No fully organic cause of her symptoms was identified. Her attending physician testified as to her symptoms and their debilitating character. The insurer however relied on the opinion of medical consultants who had not examined the employee. Although a cause could not be identified, the insurer and the employer did not dispute the legitimacy of the employee’s symptoms.
The arbitrator concluded that the insurer, in rejecting the employee’s disability claim, “focused unduly on the lack of a definitive diagnosis and not enough on the question of whether there was a disabling infirmity caused by illness or injury.” The only applicable questions should have been “was the [employee] disabled and was disease or injury the cause?” Given that the employee’s condition prevented her from performing “any and every duty pertaining to [her] occupation”, the arbitrator found that she met the definition of disability as set forth in the insurance plan. The employee was therefore entitled to receive the plan benefits as claimed.
3. Arbitrator McNamee, in Samuel Son & Co, 2012 CanLII 44420 (ON LA) (MacNamee), upheld the employee’s termination for breach of the conditions of the employee’s reinstatement pursuant to a previous discharge arbitration.
In reinstating the employee with a lengthy suspension in the previous case, arbitrator Surdykowski had stipulated that the employee would be subject to termination for just cause if, within 24 months of being reinstated, he was guilty of “any culpable misconduct for which any discipline would normally be appropriate.” Following reinstatement, the employee was terminated for a breach of the employer’s “no smoking” policy. The policy, which was set forth in an appendix to the collective agreement, stipulated that a violation of the policy would “be cause for a specific penalty ranging from a written warning for a first offence to termination of employment for a fourth offence.”
Although the “no smoking” breach would have normally resulted in this employee receiving a written warning, the terms of the reinstatement provided that termination was warranted. In dismissing the grievance, the arbitrator concluded that he lacked jurisdiction to mitigate the penalty. In doing so, he noted that there had been no suggestion that the employee’s breach of the policy was in any way related to any disability that he might suffer. The enforceability of last-chance agreements is considered in s. 16:200 (page 756) of the Illness and Absenteeism manual.
4. In St. Clair College (2012), 223 L.A.C. (4th) 72 (Parmar), there were no witnesses to the allegations against the employee, and both the employee and the complainant gave completely contradictory evidence. The arbitrator relied on the principles set forth in Faryna v. Chorney [1952} 2 D.L.R. 354 (B.C.C.A.), and ultimately concluded that the evidence of the complainant was to be preferred over that of the grieving employee.
In addressing the issue of weight to be given to a witness’s evidence, the arbitrator stated:
First, if there were inconsistencies between the evidence of witnesses about a particular fact, we would only give [the complainant’s] evidence about that particular fact less weight if we determined that there was a reason to prefer the evidence of the other witnesses. Second, if we did determine that there was such a reason, it would be appropriate to give less weight only to [the complainant’s] evidence about that particular fact. Only where the nature of the inconsistency was such that it supported the conclusion that [the complainant’s] evidence could not be relied upon as being credible or reliable generally would it be appropriate to give less weight to [the complainant’s] evidence as a whole.
The arbitrator concluded that the grieving employee had demonstrated that he was not to be trusted. “Not only is he prepared to lie when he sees fit, he is not even prepared to admit he’s lied when he is found out. With such an appalling lack of regard for the truth, there is no reason to believe anything that he says.”
The issue of assessing credibility is addressed in s. 13:500 (page 507) of the Illness and Absenteeism manual.
5. An employer’s refusal to pay “experience pay” to police constables working in an accommodated position was found to be discriminatory: Orangeville Police Services Board (2012), 223 L.A.C. (4th) 96 (Stephens)
The employer had argued in part that the accommodated employees were not entitled to premium pay because the collective agreement impliedly required that an officer must be engaged in a “front line assignment” in order to qualify. The arbitrator dismissed that contention, for not all employees who received the premium were engaged in front line assignments. The fact that such employees had the potential ability to respond to front line duties in an emergency was of little import. The grievances were upheld.
The entitlement of an accommodated employee to retain her rate of pay and benefits is addressed in section 14:615 (page 671) of the Illness and Absenteeism manual.
6. Evidence of past misconduct is to be distinguished from similar fact evidence, and as such, is not subject to the same restrictive rules governing the introduction of similar fact evidence: Peel (Regional Municipality) Department of Health Services (2012), 222 L.A.C. (4th) 189 (Albertyn)
In the case of a discharge of an employee for alleged bullying of fellow employees, the arbitrator accepted evidence of past events for which the grieving employee had not previously been disciplined. He stated:
… the proposed evidence of [the grievor’s] past conduct is not to show propensity, but for a direct purpose relevant to the alleged misconduct … The purpose of [the Employer’s] evidence is not to show that the [grieving employee] has the propensity to harass her fellow employees, but that she has, in fact, done so over an extended period, and that she continued to do so, despite extensive efforts by the Employer to have her desist … The evidence is to be presented not to show similar fact, but to show a pattern of continuing inappropriate conduct, justifying her termination.
The evidence was admitted, subject to a determination to be made regarding the weight to be accorded to such evidence.
The issue of admissibility of evidence of a party’s witness is considered in s. 13:300 (page 496) of the Illness and Absenteeism manual.
Speaking Engagements and Trade Shows
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 Illness and Absenteeism manual and to discuss any related illness or absenteeism questions.
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.
About Illness and Absenteeism
Illness and Absenteeism.com is published monthly. It highlights recent cases addressing matters included in Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Relations Practitioners. Both are published by Dunlop Publishers (Canada) Ltd. and both are authored by Denny Kells.
The manual is available as an annual loose leaf subscription. Its unique format identifies each of the governing principles and then provides the reader with discussion and case excerpts that inform the principles. The manual addresses all aspects of illness and absenteeism. It also includes an extensive chapter focusing on the duty to accommodate employees absent because of illness or injury. Included as well are chapters dealing with pre-hearing production of medical documentation, introducing medical evidence at arbitration, arbitrator-ordered medical examinations, overview of federal and provincial privacy legislation (including the Charter, PIPEDA and similar statutory provisions), the admissibility of surveillance evidence, establishing the case at arbitration, assessing credibility and weighing conflicting medical opinions, addictions and mental illness, last-chance agreements and deemed termination provisions, culpable or blameworthy absenteeism and circumstances justifying termination for non-culpable or innocent absenteeism. Some chapters are supported by a checklist designed to assist in assessing the workplace issue in the context of the stated principles.