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Illness and Absenteeism Newsletter – November, 2012 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 Article – Duty to Accommodate Not Engaged in a Termination Due to a Crown Attorney’s Arrest for Possession of Cocaine

In British Columbia Crown Counsel Assn. (2012), 220 L.A.C. (4th) 56 (Germaine) , the employee (a Crown Counsel) was terminated for possession of cocaine. There was no question that he was disabled, in that he was addicted to alcohol and cocaine and he suffered from disorders of depression and anxiety.

The employer contended that “neither this addiction nor any other disability played a role in response to the grievor’s conduct.” Relying on the “Gooding decision” in British Columbia(2007), 177 L.A.C. (4th) 193 (B.C.C.A.), the employer contended that the union had “not met the onus of establishing a prima facie case of discrimination. In the alternative, the employer [contended that] it applied a bona fide  occupational requirement, based on its accommodation of the grievor’s disability to the point of undue hardship.”

The arbitrator accepted the expert’s opinion that the grievor’s addictions so eroded his self control that “he engaged in criminal misconduct which can only be described as extremely and even absurdly irrational.” The expert opined that “although he was conscious of his decision to acquire cocaine it is very probable that he was unable to inhibit subsequent drug seeking behaviour that facilitated the use of cocaine.”

The issue was whether it was sufficient for the union to establish that a duty to accommodate arises upon a finding that there is a nexus between the grievor’s disability and his misconduct, or whether the duty to accommodate does not arise unless or until section 13(1) of the Human Rights Code is engaged, in that the duty to accommodate is not a free standing duty but only arises as part of a defence to a case of prima facie discrimination.

Although arbitrator Germaine expressed his  view that the correct approach was the obligation to simply establish a nexus (between the employee’s disability and his misconduct), he considered himself bound by the latter approach (the need to first establish a prima facie case of discrimination as set forth in the Gooding case). On the basis of the “nexus approach, the grievance would have succeeded. However, adopting the Gooding reasoning, the grievance would fail. That was the result here.

The following excerpt from the Gooding decision reflects the approach that the arbitrator reluctantly accepted:

The Gooding decision set aside an award in which the prima facie discrimination determination was based on a finding that the grievor’s theft of alcohol was related to his alcohol addiction. Writing for the majority, Huddart JA said:

[11] I can find no suggestion that Mr Gooding’s alcohol dependency played any role in the employer’s decision to terminate him or in its refusal to accede to his subsequent request for the imposition of a lesser penalty. He was terminated, like any other employee would have been on the same facts, for theft. The fact that alcohol dependent persons may demonstrate “deterioration in ethical or moral behaviour”, and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency.

[15] I can find no suggestion in the evidence that Mr Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his conduct greater than that another employee would have suffered for the same misconduct. [Read More]

 


Recent Decisions of Interest

  1. The British Columbia Court of Appeal has upheld an arbitrator’ decision that termination of disabled employees, without payment of severance pay, in the context of a partial mill closure, was prima facie discriminatory and constituted adverse treatment.

    In West Fraser Mills Ltd. (2012), 219 L.A.C. (4th) 129 (BCCA), the court considered an appeal from the decision of arbitrator Burke, reported at (2010), 199 L.A.C. (4th) 344. The grievance had been filed by seven employees, all of whom were receiving long-term disability payments at the time of their termination. The arbitrator found that six of the seven employees had been terminated for just cause; that being non-culpable excess absenteeism.

    The arbitrator however went on to find that “the employer discriminated against the grievors by terminating them for the purpose of avoiding payment of severance pay, …The arbitrator held that the grievor’s disability was a factor in the employer’s decision to terminate, and that the union had therefore made out a case of prima facie discrimination under the [British Columbia] Human Rights Code … The grievors were adversely affected by their termination, … because termination affected their right to severance pay …” The termination of their employment amounted to discrimination on the basis of disability, and as a consequence, the grievors were found to be entitled to the severance pay payable under the collective agreement for permanent partial plant closure. The arbitrator’s decision was upheld by the British Columbia Court of Appeal. [Read More]

  2. A discharge of a heavy equipment operator for failure to attend work by reason of heavy drinking was upheld in the absence of evidence to establish that the grievor was addressing his problems with alcohol.

    In Northwest Territories (2012), 219 L.A.C. (4th) 165 (Sims), the employee was discharged as a consequence of two incidents where he either failed to report for work or follow the call-in protocol if he was going to be absent. Off-work consumption of alcohol played a significant part in the employee’s absences. The grievor had a significant disciplinary record for similar previous absences. None of them had been grieved.

    The employee had been encouraged on previous occasions to obtain union representation, but he took no steps to do so. On three occasions he was asked to see a doctor and obtain a medical prognosis, but again, he failed to do so.

    The union asserted that the employer should have been and was aware that alcohol played a large part in the employee’s failure to attend work and that this placed an onus on the employer to take steps to accommodate the employee’s disability. The employer countered that the employee had not produced any evidence that he was an alcoholic and that his assertions amounted to a self-diagnosis.

    In upholding the termination, the arbitrator stated that the grievor had not taken any concrete steps to show that he was working on his problems. The employer’s concerns were met by a “passive avoidance” of the problem. While “alcoholism is a difficult addiction, and recovery a tough process … the best first steps involves real recognition and embracing help. Regrettably, the grievor has exhibited neither.”

  3. An arbitrator reinstated a federally-regulated employee who had been terminated after having been absent from work for 21 years following a serious job injury. Kingsway Transport (2012), 218 L.A.C. (4th) 321 (Slotnick)

    The union argued that the employee’s termination was contrary to s. 239.1 of the Canada Labour Code. That section provides in part:

    239.1 Subject to subsection (4) and to the regulations made under this Division, no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence from work due to work-related illness or injury.

    The arbitrator commented that the only regulation enacted addressed the time limits for an employee’s return to work after he has been certified as fit to return.

    The union contended that the common-law doctrine of frustration was inapplicable because of section 168 of the Code. That section reads in part as follows:

    168. (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

    The arbitrator agreed with that contention.

    The union also contended that Section 239 of the Code, dealing with leaves for any reason (i.e. not just limited to work-related illness or injury) did not modify the employer’s obligation. Again, the arbitrator accepted the union’s argument.

    The grievance was upheld, with the employee being reinstated to non-active status. Pursuant to sections 239.1 (5) and (7) of the Code, the employee was also awarded pension plan contributions and reimbursement for expenses that would otherwise be covered under his benefits plan. [Read More]

  4. The rule in Browne v. Dunn, requiring that a cross-examiner cannot rely on subsequent contradictory evidence to impeach an earlier witness without putting that evidence to the earlier witness, was held to be inapplicable in Pictou County Health Authority (2012), 218 L.A.C. (4th) 335 (Slone)  [Read More]

  5. A grievor, who had uttered death threats against senior management, was reinstated on the basis that the threats, made not directly but in the context of a therapeutic relationship, posed no risk. An Independent Medical Report, commissioned by the employer, opined that there was no risk in returning the grievor to the workplace. That report was stated to reinforce the view that the grievor’s threatening statements were attributable to stress rather than a portent of things to come.

    In Highland Community Residential Services (2012), 219 L.A.C. (4th) 52 (Richardson), the employee, a residential counselor in Nova Scotia, had been disciplined for smoking on the job and for several instances of having failed to follow work-related protocols. During the course of a subsequent hospital visit, the employee uttered a threat of assault/aggression against a member of the employer’s management. The physician, believing that the threat was serious enough to cause her to breach doctor-patient confidentiality, informed the employer of the threat in non-specific terms. In doing so, she commented that she viewed the threat as being credible and serious. As a consequence, the employee’s employment was terminated.

    A subsequent Independent Medical Examination concluded that “the grievor’s presentation best fit a diagnosis of “intermittent explosive disorder”, which [it] noted parenthetically, “has some degree of controversy in psychiatry’. On the issue of discipline, the report recommended that the employee “should be and could be treated no differently “than any other employee as a result of … his intermittent explosive disorder.”

    The arbitrator concluded that the grievor was not disabled and that there was no need for accommodation. His employment was provisionally reinstated after what amounted to a period of one year. No back pay was awarded. [Read More]

  6. An employee who left work without permission during his last shift immediately prior to a Christmas shut-down was properly subject to a letter of warning for such conduct. However, the loss of six days of statutory and holiday pay for having failed to work the entire shift immediately prior to the holiday, pursuant to the terms of the collective agreement, was set aside on the basis that the employee had substantially complied with the collective agreement requirement by working four hours out of a ten hour shift. Tyco Thermal Controls (Canada) Ltd. (2012), 219 L.A.C. (4th) 272 (Slotnick)

    The arbitrator found that while no one disputed that the employee was sick, he had breached the employer’s policy that explicitly required employees to have a supervisor’s permission to leave the premises during working hours except in the case of an emergency. The rule, which was related to safety, was considered to be reasonable. However, the arbitrator commented that permission to leave “should not be unreasonably withheld.” This finding was sufficient to uphold the employer’s letter of warning.

    On the issue of lost pay, the arbitrator accepted the views expressed in an earlier case, in which it was stated that “holiday pay, [being] an earned benefit, ‘ought not to be taken away unless very clear wording of the collective agreement, along with the facts of the particular case, require it. Thus, it is my view that there may be said to be a presumption in favour of an employee with respect to an entitlement to holiday pay.”

    One of the exceptions to the attendance requirement permitted absence in the event of “A verified personal illness.” The arbitrator found that such was not the case here, for while “verification may not necessarily require the word of a physician, … it must require more than the word of the employee himself.”

    The arbitrator adopted a test of substantial compliance. In doing so, the arbitrator commented that the test would not be applicable where the qualifying clause required that the full shift be worked. He commented that here, there was no evidence that the employee was attempting to lengthen the holiday period. He went home and rested for the balance of the day. This was not a case of “holiday stretching.” The employee was awarded the lost holiday and statutory pay.

  7. Interview notes and witness statements taken in the course of an employer’s investigation were considered to be compellable in that they were not protected by a litigation privilege.

    In Weetabix of Canada Ltd. (2012), 219 L.A.C. (4th) 427 (Brown), the union sought production of both notes of interviews with witnesses and statements signed by them. It appeared that the witness statements were collected before the termination letter was drafted. The parties agreed that “documents are privileged if prepared for the ‘dominant purpose’ of current or anticipated litigation.”

    The union however relied “on a line of arbitral authority holding that litigation privilege does not apply to interview notes and witness statements produced in the course of a disciplinary hearing.” That line of authority is considered in Section 10:405 of the Illness and Absenteeism manual. The employer countered with the argument that such authority did not apply to witness statements in this case because the statements “were produced after the employer had decided to terminate the grievor and in a context where his termination was likely to be the subject of a grievance.” Moreover, employer counsel argued that if the statements were prepared prior to the decision to terminate, they were nevertheless prepared for the dominant purpose of litigation.

    The arbitrator distinguished, perhaps somewhat unsatisfactorily, between the approach taken by courts and arbitrators:

    Should I be guided by arbitration awards made in the context of dismissals or by court judgments rendered in the context of personal injury or property damage? There is one very important difference between the factual scenarios in these two types of cases. Terminations are planned in a way that car accidents and fires are not. That is why investigations precede dismissals whereas investigations occur after accidents and fires. As noted by Professor Etherington, inquiries preceding terminations take place in a setting where the dominant purpose cannot be preparing for litigation about termination, because a decision to terminate has not yet been made. By contrast, inquiries into damage to person or property are conducted against the backdrop of a loss that has already occurred and could become the basis for legal action. This explains why the courts have granted litigation privilege to documents created in the course of an accident investigation. The factual difference between terminations and accidents leads me to conclude these court decisions offer me no useful guidance.

    In awarding production of the disputed documents, the arbitrator stated that “the final decision to terminate was not made until after the statements had been signed. As the statements were gathered as part of the investigation leading to the final decision, they do not attract litigation privilege.”