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March 2014 Newsletter

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].

 

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In this edition you will find:

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Feature Case: An employee who sought damages for loss of employment was reinstated on an unpaid status until she was able to resume her work place duties.

In King’s Transfer Van Lines Inc., 2013 CanLII 68183 (CA LA) (Luborsky), the employee had filed an unjust dismissal complaint under the Canada Labour Code. She had been unable to work for four months following her maternity and parental leave because of illnesses in part related to the birth of her child. The employee was on long term disability at the relevant time. Once the employer received notice that the employee was receiving long term disability, it terminated her employment so that it could discontinue premium payments for the period of her absence. The employer advised the employee that her job would be available for her when she was able to return to work.

The adjudicator determined that the employee was unjustly dismissed. The termination of the employee’s employment in order to cancel her health and welfare benefits violated s. 7 of the Canadian Human Rights Act in that it constituted a form of discrimination in employment on the prohibited ground of disability.

On the issue of remedy, the employee sought the equivalent of common law damages for wrongful dismissal in lieu of reinstatement. The arbitrator commented that such damages could be awarded at the instance of an employee:

Although the cases considering whether to award damages in lieu of reinstatement typically arise at the instance of an employer, thus requiring the employer to satisfy an onus to prove that the essential relationship of trust between the parties is likely incapable of restoration, in my view the same principle applies when it is the employee requesting damages in lieu of reinstatement but the employer is prepared to have the employee return to the workplace. The onus is on the party wanting to deviate from the presumed norm under subsections 242(4)(a) and (b) [i.e. the unjust dismissal provisions of the Canada Labour Code] of awarding reinstatement with consequential damages to make the employee whole for his or her loss of employment, which in application to the facts of the present case resides with the Complainant who seeks common law damages for wrongful dismissal instead of reinstatement.

The complainant’s preference in the matter isn’t determinative … While the Complainant’s fear of potential mistreatment by her Employer upon reinstatement as retaliation for exercising her rights … is understandable, such conduct [can attract fines of up to $5000.00]. But aside from her assertions and speculation of retaliation, the Complainant provided no evidence to satisfy her onus on this point.

Given the employer’s willingness to reinstate the employee when she recovered, “the appropriate remedy under the Code is reinstatement of the Complainant to an employment status with the Employer as a person who is unable to work because of disability and in receipt of LTD benefits, with the right of return when medically capable, and compensation to make her whole for any losses occasioned by the Complainant’s unjust dismissal in that interval.”

The Complainant was awarded $10,000.00 for mental distress damages arising out of the manner of her dismissal. Punitive damages were denied.

The topic of damages for failure to accommodate is considered in section 14:700 of the Illness and Absenteeism manual, commencing at page 693 of the manual.

B. Recent Decisions of General Interest

1. An employer was authorized by an adjudicator to discuss confidential medical details with a now-retired disability coordinator prior to preparing its Reply to a human rights complaint.

In Thunder Bay District Social Services Administration Board, 2013 HRTO 1555 (CanLII) (Sanderson), the employer succeeded the City of Thunder Bay as program operator. The City provided the employer with health and disability management services and retained the employee’s health files. A health nurse employed by the City, and who had by then retired, was involved in the management of the employee’s accommodation requests.

In preparation for responding to the employee’s complaint, the employer applied to the Tribunal for an order directing that the City produce sought-after documents from the employee’s health file and further that a protocol be established to set parameters for discussions between the retired nurse and the employer.

The Tribunal ordered that the City provide the employer with documents that were required to respond to specified portions of the application, but it declined to order production of the employee’s entire health file on the basis that it would be premature to do so.

On the issue of the employer being able to speak to the retired health nurse, the Tribunal stated that an elaborate protocol was not required; for “as in any litigation, the respondents are entitled to speak to or attempt to speak to any potential witness, such as [the retired nurse], and potential witnesses are free to speak with the respondent – or not. I see no reason to deviate from this norm and for that reason I decline to require [the retired nurse] to speak to the respondents.”

On the issue of the retired nurse being able to freely discuss the employee’s confidential health file with the respondents, the tribunal authorized the retired nurse to discuss with the respondents and their counsel documents obtained from the employee’s health file as well as any confidential conversations that she had with the employee related to allegations set forth in the employee’s application.

Similarly, in Georgian Bay General Hospital, 2013 HRTO 1966 (CanLII) (Debane), the adjudicator granted an order for production of documents held in the employee’s Occupational Health file on the grounds that they were arguably relevant to the employee’s claim that she had been subject to bullying and harassment by the employer’s Occupational Health Nurse. As in the Thunder Bay case, the adjudicator denied an order that the Occupational Health Nurse answer its inquiries, stating

… the Respondent has not provided me with any source, statutory or otherwise, for my authority to compel any person to speak to any party in the preparation of a pleading. I do have the power to compel individuals to testify at a hearing, but we are not yet at this stage.

The topic of production of documents is addressed in section 10:205 of the Illness and Absenteeism manual, commencing at page 282 of the manual.

2. An Ontario arbitrator again admitted surveillance evidence based solely on its relevance rather than on whether it met the reasonableness test utilized by some arbitrators.

 In Energex Tube, 2013 CanLII 67040 (ON LA) (Bendel), the employee was terminated for alleged dishonesty concerning the extent of his disability following an injury at work. The employer sought to rely on an investigator’s video surveillance tapes, the accompanying written reports and the investigator’s viva voce evidence. The union objected to the admission of such evidence on the basis that it was not reasonable for such surveillance to have been conducted.

The employee was subject to surveillance for a total of 36 days, of which 24 were after his return to work. This included surveillance in and around his residence in Ontario as well as surveillance on a vacation trip to Montreal.

Arbitrator Bendel admitted the evidence. He summarized the reasons for his conclusion in the following terms:

  1. At common law, the courts have not been concerned with the manner in which evidence has been obtained in deciding whether to admit it or not: see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272;
  2. The only exception to this rule in Ontario (and most other provinces) is where evidence has been obtained in violation of the Canadian Charter of Rights and Freedoms, in which case subsection 24(2) authorizes the court to exclude the evidence “if the admission of it in the proceedings would bring the administration of justice into disrepute;”
  3. In particular, even the violation of privacy legislation in obtaining evidence does not render it inadmissible: see Cam v. Hood, [2006] B.C.J. No. 1255 (B.C.S.C.), and Ferenczy v. MCI Medical Clinics 2004 CanLII 12555 (On SC), (2004), 70 O.R. (3d) 277 (S.C.) (appeal dismissed): 2005 CanLII 18186 (ON CA), (2005), 198 O.A.C. 254 (C.A.);
  4. Arbitrators who refuse to admit evidence that would be admissible in court violate the rule audi alteram partem and their awards are subject to being overturned on judicial review: see Universite du Quebec a Trois-Rivieres, [1993 CanLII 162 (SCC), [1993] 1 S.C.R. 471]; and
  5. In particular, the statutory discretion given to arbitrators as regards the admission of evidence does not protect their awards from judicial review where they have refused to admit relevant evidence: Universite du Quebec a Trois Rivieres, supra.

The foregoing approach has not been universally accepted. Many arbitrators still require that surveillance evidence meet a two-step reasonableness test before it will be admitted into evidence. That test involves an initial consideration of whether it was reasonable in the circumstances to have undertaken surveillance, and if so, consideration of whether the surveillance was conducted in a reasonable manner.

Even employing the relevance approach adopted by arbitrator Bendel, legislation in Manitoba and Quebec may render certain types of surveillance evidence inadmissible.

The two approaches to the admissibility of surveillance evidence are discussed in depth in Chapter 12 of the Illness and Absenteeism manual.

3. Flu and strep throat did not constitute a disability worthy of accommodation.

In College of Massage Therapists of Ontario, 2013 HRTO 1960 (CanLII) (Whist), the applicant’s appointment as a college examiner was cancelled because she was unable to attend a mandatory training session because of illness. She alleged that the College had discriminated against her because of a disability.

The application was dismissed on the basis that the medical condition that prevented the applicant from attending (flu and strep throat) did not constitute a disability under the Code. Rather, they were transitory ailments that did not act as a barrier to prevent the applicant from participating in society. To consider such commonplace illnesses as a disability “would have the effect of trivializing the Code’s protections.”

The distinction between an illness and a disability is considered in section 14:202 of the Illness and Absenteeism manual, commencing at page 528 of the manual.

4. An Adjudicator Awarded Damages for Lost Wages Where the Evidence of Wage Loss was Unsatisfactory

In Dental and Hearing Crafts Ltd., 2009 CanLII 85611 (NL HRC) (Merrigan), an employee who had suffered discrimination attributable to mental disability sought damages rather than reinstatement. The adjudicator noted that while her lost earnings for a two year period likely amounted to approximately $2.00 per hour, the evidence had not disclosed the start and termination dates or hours worked for different employers during that two year period. He stated that “the evidence for wage loss, a loss that should be quantifiable, is unsatisfactory.” Nevertheless, the adjudicator, relying on a statutory provision enabling a successful complainant to be compensated for “all or a part of wages or income lost …” ordered payment of $2500.00. He stated that he was satisfied that this amount would not compensate the employee for her entire wage loss. He also ordered payment of $4000.00 for general damages.

The topic of damages for failure to accommodate is considered in section 14:700 of the Illness and Absenteeism manual, commencing at page 693 of the manual.

5. A termination was upheld where an employee failed to report her impending lateness in accordance with the employer’s attendance program. The accepted basis for the termination was the employee’s failure to follow the employer’s rules.

In J & L Beef, 2013 CanLII 72577 (BC LA) (Brown), the employee had been on a last-chance agreement that had recently expired. Among the clauses included in that agreement was one which provided that the employee was required to comply with all of the terms of the employer’s Attendance Policy and Absence Control Program, and that any act that resulted in any form of disciplinary action during the period of the agreement would result in immediate dismissal.

The Employer’s policies required that absences or lateness be reported by calling its phone-in line. The employee had been aware of the policy and the call-in number, and they had again been reviewed with her when she was reinstated pursuant to the last-chance agreement.

On the morning of the termination incident, the employee drove to her doctor because she had been experiencing pain in her chest. Rather than telephone the call-in number, the employee telephoned a co-worker to request that she report that she would be late. When the employee ultimately arrived at work, she “swiped-in” but did not speak with her supervisor as required. Her employment was terminated the following day.

The arbitrator accepted that the employee was terminated not because of lateness but because she had failed to follow the employer’s rules. The incident had occurred shortly after the expiration of the last-chance agreement, and almost immediately after the expiration of that agreement, the employee had served a one month suspension for refusing a supervisory request to perform a task on the production line. The arbitrator refused to substitute a lesser penalty He stated that had the employee been disciplined for being late, or had she maintained a discipline-free record following her reinstatement, then his conclusions would have been different.

The issue of lateness is considered in section 17:201 of the Illness and Absenteeism manual, commencing at page 812 of the manual.

Subscriber-Only Manual Supplement for March

The March update of the Manual Supplement has now been posted on line. Thee 181 page Supplement is available only to subscribers of the Illness and Absenteeism manual. It can be accessed at www.illnessandabsenteeism.com using the subscriber’s email address and the password assigned to the subscriber.