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September 2014 Newsletter

 In this edition you will find:

Feature Article: The Federal Court of Appeal has determined that there is no separate procedural duty to accommodate, and that procedural inadequacies in the accommodation process are not germane where the employer’s actions did not constitute discrimination. By way of example, any deficiencies in the accommodation process are irrelevant where the employer is able to establish that accommodating the employee would have constituted an undue hardship.

Nevertheless, in cases where discrimination has been established, an employer’s failure to adopt an acceptable procedural approach will likely expose the employer to increased monetary damages. [Click here]

Recent Decisions of General Interest:

  1. A termination for innocent absenteeism was upheld where medical evidence as to the likelihood of future attendance rested on a “foundation” of what the employee had told his doctors. The arbitrator concluded that such evidence had “no more validity than the same assurances given several times over the past years,” all of which had proven to have been incorrect. [Click here]
  1. An employee who had been subjected to corrective discipline (and ultimately termination) for a series of “lates”, was unsuccessful in having his termination set aside. Although the employee was suffering from a disability (depression), there was no medical evidence to establish a link between his depression and his inability to attend work on time. [Click here]
  1. Admitting evidence that is not at least arguably relevant, on the basis that its weight will be assessed by the arbitrator when arriving at her decision, is a practice that should be utilized only in very limited circumstances. [Click here]
  1. A termination for lateness was upheld pursuant to the provisions of a last chance agreement despite the fact that other employees were permitted greater leniency when late. The differing treatment was not discriminatory, in that the employee’s past conduct subjected him to the terms of a last chance agreement that did not provide for leniency. [Click here]
  1. A federally-regulated employer did not violate s. 239 of the Canada Labour Code when it disciplined an employee for having failed to provide medical documentation after returning from a reported illness, for the discipline was attributable not to an illness but rather to the employee’s failure to provide medical documentation of such illness. [Click here]
  1. The fact that a physician has declared an employee fit to work does not answer the question of whether she was disabled within the meaning of the governing human rights legislation. A terminated restaurant waitress who was found to have been disabled was awarded $15,000 for injury to her dignity, feelings and self-respect, and a further $27,000 to compensate her for future lost wages. [Click here]

Subscriber-Only Manual Supplement for September 2014: General Preview Now Available until October 15, 2014 [Click here]

Feature Article: The Federal Court of Appeal has determined that there is no separate procedural duty to accommodate, and that procedural inadequacies in the accommodation process are not germane where the employer’s actions did not constitute discrimination. By way of example, any deficiencies in the accommodation process are irrelevant where the employer is able to establish that accommodating the employee would have constituted an undue hardship.

Nevertheless, in cases where discrimination has been established, an employer’s failure to adopt an acceptable procedural approach will likely expose the employer to increased monetary damages.

The majority of tribunals and arbitration boards had accepted that the 1999 Supreme Court of Canada decision in Meiorin established that the duty to accommodate had both a procedural and substantive component, and that the failure to meet the procedural component in itself amounted to discrimination. Examples of a breach of the procedural duty to accommodate were found when the employer failed to communicate and collaborate with the employee and the union in considering the matter of accommodation;  when the employer failed to request that the employee undergo an Independent Medical Examination in order to better identify accommodation prospects; when the employer failed to conduct a comprehensive search for positions or tasks that a disabled employee would be capable of performing; and when the employer failed to solicit information from others that was relevant to the accommodation process. In Shelter Regent Industries (2003), 124 L.A.C. (4th) 129 (Ponak), the arbitrator summarized the procedural duty to accommodate in the following terms:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is available. This could include information about the employee’s current medical condition, ability to perform job duties, prognosis for recovery and capabilities for alternative work. The obligation to accommodate to the point of undue “hardship” requires employers to seriously consider how employees can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken, constitutes failure to satisfy the “procedural duty” to accommodate.

The procedural duty to accommodate has now been circumscribed by the Federal Court of Canada in Canada (Attorney General), 2014 FCA 131 (CanLII). It concluded that despite any procedural inadequacies, the employee’s complaint should have been dismissed upon a finding of undue hardship, for the impugned conduct would not then constitute a discriminatory practice for the purposes of the Canadian Human Rights Act.

The Tribunal in that case had contended that the existence of a procedural duty to accommodate (separate and apart from the substantive duty) was supported by the Supreme Court of Canada’s decision in Meiorin, the decision of the Ontario Superior Court of Justice, Divisional Court in ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 649 and several human rights tribunal decisions.

In Meiorin (British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin), 1999 CanLII 652 (SCC)), the Supreme Court of Canada had set forth a three part test to determine whether a prima facie standard constituted a bona fide occupational requirement. The paragraph from that decision that the Tribunal and others had relied upon reads as follows:

Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard …

In upholding the decision of the Federal Court, the Federal Court of Appeal commented that the Supreme Court’s comments were to be read as part of the discussion of the third part of the three part test. It stated:

[We] agree with the Federal Court Judge that the Supreme Court of Canada was not intending to create a separate procedural right to accommodate. There is simply one question for the purposes of the third step of the test: has the employer “demonstrated that it is impossible to accommodate individual employee’s sharing the characteristics of the complainant without imposing undue hardship upon the employer”? Once the employer has established this, then it has satisfied the requirements of the third step. Assuming that the first two steps are also satisfied (which they were in this case), it is a bona fide occupational requirement and it is not a discriminatory practice.

In considering the ADGA decision, the Court commented that the Ontario Divisional Court decision was not a persuasive authority, for that Court had simply assumed the existence of an independent procedural duty without having examined the statutory basis for that assumption.

The approach adopted by the Federal Court of Appeal is also reflected in a limited number of earlier decisions. In Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49508 (ON GSB) (Dissanayake), the adjudicator found that as long as the accommodation that the employer identifies “is found to be reasonable, the absence of discussions with the employee by itself does not result in a breach of the duty to accommodate. In other words, there is no independent procedural duty to meet … Whether the employer complied with its duty to accommodate in each case ultimately depends on whether the accommodation decided upon by the employer was reasonable.” In ADM Milling Co. (2008), 177 L.A.C. (4th) 314 (Slotnick), the arbitrator commented that “if the company arrived at the correct result despite a flawed process, the grievance must still fail.” In Canadian Mental Health Assn. (2012), 217 L.A.C. (4th) 250 (Surdykowski), the arbitrator accepted that “if accommodation to the point of undue hardship is demonstrably unnecessary or impossible, an employer’s procedural failings will not constitute a breach of the Code.” And finally, in the very recent decision in Andorra Building Maintenance Ltd., 2014 HRTO 322 (CanLII) (Bhattacharjee), the adjudicator concluded that:

There is no contravention of the Code simply because there was a failure to investigate a complaint of discrimination where there is no finding of discrimination. Put differently, the Code is not contravened by the failure to investigate discrimination that does not exist. This finding is supported by the recent decision of the Divisional Court in Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII).

Despite these decisions, procedural considerations remain extremely important. As adjudicator Bhattacharjee stated in Andorra:

… Employers are well-advised to investigate human rights complaints as the failure to do so can cause or exacerbate the harm of discrimination in the workplace. Internal investigations provide employers with the opportunity to remedy discrimination, if found, and can prevent Applications being filed with the Tribunal. They also limit employers’ exposure to greater individual and systemic remedies. The failure to do so is at their peril. But, if they fail to investigate discrimination that does not exist, that failure is not, in and of itself, a violation of the Code


 

Recent Decisions of General Interest

A termination for innocent absenteeism was upheld where medical evidence as to the likelihood of future attendance rested on a “foundation” of what the employee had told his doctors. The arbitrator concluded that such evidence had “no more validity than the same assurances given several times over the past years,” all of which had proven to have been incorrect.

In Toronto (City), 2014 CanLII 22640 (ON LA) (Barrett), the employee had been terminated for innocent absenteeism. He had missed 60 days of work in 2009, 96 days in 2010, 109 days in 2011, and 35 days up until May 15 of the 2012 calendar year. The employee’s continuing absences were said to be attributable mainly to irritable bowel syndrome and diabetes. The evidence was that a patient could learn to manage these conditions through a combination of diet and exercise.

The arbitrator commented that all of the doctors were in agreement that

[Irritable bowel syndrome] is “a diagnosis of exclusion and that there is no physical or organic way to measure, identify or test for it. Physicians can only rely upon the self-reports of the patient. The physicians can neither verify, substantiate or disprove what the patient reports. So what these doctors say and predict is wholly resting on a foundation of what the patient tells them. In this case, the patient has an incentive in his post-termination medicals to present himself as having repaired his conditions. His evidence however, both directly and indirectly through his doctors, is equally unreliable and equally unable to medically provide a foundation for a conclusion of regular attendance. The history of this case shows how inaccurate those predictions have been in the past … It is hard to believe that the same pattern of positive predictions and disappointing results will change.

One of the employee’s treating physician’s opined, less than two months prior to the hearing that the employee could be a regular attender at work and that he should be able to attend work as regularly as anyone else. In assessing that opinion, the arbitrator stated:

The sole purpose of [the employee’s] last visit to [this doctor] was to get a favourable medical report and create evidence for this hearing. The favourable report was created, but of course it was entirely dependent on [the employee’s] representations to the doctor. [The doctor] had a loose standard of what was appropriate attendance and what he expected from [the employee]. He said he should be able to attend “as much as anybody else”, “one day a month is acceptable.” In any event, it is not up to [the doctor] to define what is acceptable attendance for the [employer]. Furthermore, even if we take everything the [employee] says at face value and believe that he is doing better now, the nature of his condition is such that it has no predictive value when the environment changes, ie. in the event of a return to work.

In dismissing the grievance, the arbitrator commented that she could not find on a preponderance of clear and cogent evidence that the employee was capable of regular attendance in the future.

The conditions that enable an employer to terminate an employee for innocent absenteeism are set forth in sections 17:301 to 17:306 of the Illness and Abesnteeism manual or its supplement, commencing at page 840 of the manual. Matters related to the sufficiency of a medical certificate are considered in sections 7:400 to 7:800 of the Illness and Absenteeism manual,or its supplement, commencing at page 133 of the manual.


 

 An employee who had been subjected to corrective discipline (and ultimately termination) for a series of “lates”, was unsuccessful in having his termination set aside. Although the employee was suffering from a disability (depression), there was no medical evidence to establish a link between his depression and his inability to attend work on time.

In Corporation of the City of Brampton, 2014 CanLII 12449 (ON LA) (Parmar), the employee was terminated after having first failed to provide the required one hour notice that he would not be attending for his scheduled shift, and then, some six weeks later, for having been late as a consequence of running errands prior to the start of his shift. The employee, who was a transit operator, had, in the nine months prior to the two latest incidents, received two one-day suspensions, a three day suspension, a counselling and a five day suspension (for three incidents), all for reporting late, and a five day suspension for failing to follow verbal directions.

The arbitrator accepted that timeliness was an important issue in the transit industry, and that employees are expected to conduct themselves in a way that permits the employer to accomplish its work as scheduled.

It was agreed that the employee had a disability, in that he suffered from depression. The employee had been prescribed medication for depression but he failed to pursue his doctor’s recommendation for a psychiatric assessment.

The arbitrator framed the issue as being whether there was any nexus between the employee’s depression and his failure to attend work in a timely manner. He found that there was not. In the first place, there was no medical evidence drawing such a link. The employer’s physician testified that it was quite common for employees who were diagnosed with depression to be able to remain in the workplace and perform their duties. The physician testified that “while depression can affect a person’s higher level cognitive functioning, it would not impact a person’s ability to attend work on time, which is a cognitively simple task.” The employee’s physician testified that “as a general statement, it was possible that certain depression symptoms, like being unable to wake up on time, may impact a person being on time.” The arbitrator commented that “there was no evidence that the [employee’s] lateness had anything to do with waking up on time.”

In addition, the employee had not testified that his lateness was attributable to having slept in. The arbitrator stated:

In the absence of any evidence upon which it can be concluded the disability has some nexus to the actual misconduct at issue, the disability is essentially irrelevant to the just cause analysis. The mere existence of a disability is not a shield from the consequences of misconduct.

The arbitrator commented that prior discipline had not resulted in a behavioural change and that at the hearing, “there was no direct acknowledgement that [the employee] needs to change anything. His view seems to be that he’s conducting himself just fine, and its circumstances out of his control that are resulting in the lack of timely attendance and timely communication. There is no recognition that his own conduct could alter the outcome in any way.”

In dismissing the grievance, the arbitrator stated that given the employee’s attitude, there was no basis to conclude that anything less than discharge would “produce any different result than it has before.”

The imposition of discipline in cases of lateness is addressed in section 17:201 of the Illness and Absenteeism manual or its supplement, commencing at page 812 of the manual, while the matter of causation as it relates to improper conduct is considered in sections 14:320; 14:410; 15:301, 15:302 and 15:303 of either the Illness and Absenteeism manual or its supplement.


 

 Admitting evidence that is not at least arguably relevant, on the basis that its weight will be assessed by the arbitrator when arriving at her decision, is a practice that should be utilized only in very limited circumstances.

In Lakehead University, 2014 CanLII 11945 (ON LA) (Surdykowski), the arbitrator set forth his view on the admissibility of such evidence:

The test for admissibility of evidence in a grievance arbitration proceeding is “arguable relevance.” Although low, this threshold is real and must be meaningful. As a matter of principle, I do not subscribe to any arbitral school of thought which posits that all evidence offered should be admitted subject to an assessment of weight at the end of the proceeding. In my view, such an approach cedes control of the process to the parties, ignores the arbitrator’s obligation to manage and control the proceeding, and tends to distract and unduly extend a proceeding for no legitimate purpose. That said, I recognize that as a practical matter it may be appropriate to take the “admit now and weigh later” approach in circumstances where the disputed evidence is confined and relatively short, and dealing with an objection fully on the merits would take an inordinately long time and serve only to lengthen the hearing. But that is not this case.

I am mindful that s. 48(12)(f) of the Labour Relations Act, 1995 gives an arbitrator the discretion to admit evidence not admissible in a Court proceeding. However, this cannot be taken to justify the sort of evidentiary free-for-all which can result when an “admit now and weigh later” approach is adopted. It is not appropriate to ignore the tried and true rules of evidence which have been developed for good natural justice and fairness reasons when these apply equally well to grievance arbitration proceedings. Keeping in mind that evidence which is not arguably relevant cannot possibly be probative, evidence which is clearly prohibited by the collective agreement, by statute or by an appropriate established rule of evidence (such as evidence of matters within the ambit of solicitor-client privilege, or settlement privilege, the “rule” in Browne v. Dunn, for example); or which is not apparently probative of any position legitimately taken in the proceeding, cannot be admitted. Although I concede it is better to have evidence which is not needed than it is to need and no[t] have it, in the absence of a clear collective agreement or other prohibition, the question I ask myself (and often ask counsel) is: how can the evidence in issue assist me?

The concept of arguable relevance is considered in section 10:205 of the Illness and Absenteeism manual or its supplement, commencing at page 282 of the manual.


 

 

A termination for lateness was upheld pursuant to the provisions of a last chance agreement despite the fact that other employees were permitted greater leniency when late. The differing treatment was not discriminatory, in that the employee’s past conduct subjected him to the terms of a last chance agreement that did not provide for leniency.

In Bombardier Aerospace, 2014 CanLII 11407 (ON LA) (Steinberg), the employee had been reinstated pursuant to terms and conditions that were considered to constitute a last chance agreement. Those terms included a requirement that the employee maintain a record of punctuality in strict compliance with the employer’s attendance management policy, and that he furnish satisfactory reasons and proper documentation acceptable to the employer for all late arrivals or early departures. There was no evidence that the employee suffered from a disability.

Two days after his reinstatement, the employee was five minutes late returning from lunch. The employer met with the employee and impressed upon him that while it could have terminated his employment, it was electing to use the occasion to remind him of the precariousness of his situation. The employee was terminated after having left work, (just one week later), 30 minutes prior to the end of his shift.

The union argued that the employee “was subject to different rules than other employees who are given some leniency with respect to early departures.” The arbitrator rejected that argument, stating that the employee was “not in the same position as any other employee. By his past misconduct, he put himself in the position where he was subject to the terms of the LCA [Last Chance Agreement] which do not provide the same leniency]. In upholding the termination, the arbitrator stated:

The LCA must be strictly respected by employees and arbitrators. Employers would have no incentive to enter into such agreements if it were otherwise. Such agreements are, in my view, important tools available to the parties to preserve the employment of employees in circumstances where termination of employment would otherwise be inevitable.”

The issue of the enforcement of last chance agreements in the absence of a human rights component is considered in section 16:200 of the Illness and Absenteeism manual or its supplement, commencing at page 755 of the manual.


 

A federally-regulated employer did not violate s. 239 of the Canada Labour Code when it disciplined an employee for having failed to provide medical documentation after returning from a reported illness, for the discipline was attributable not to an illness but rather to the employee’s failure to provide medical documentation of such illness.

In Canadian National Railway Company, 2014 CanLII 15962 (CA LA) (Schmidt), the employee had been assessed demerit points for failing to submit requested medical documentation within 15 days following his return from a short absence for a reported illness. At the outset of the employer’s formal investigation, the employee produced a medical certificate supporting his absence from work. The employer accepted that the employee was ill.

The union contended that the discipline violated section 239 of the Canada Labour Code. That section reads:

  1. (1) Subject to subsection (1.1), no employer shall dismiss, suspend, lay off, demote or discipline an employee because of absence due to illness if
  • the employee has completed three consecutive months of continuous employment by the employer prior to the [absence];
  • the period of absence does not exceed 17 weeks; and
  • the employee, if requested in writing by the employer within 15 days after his return to work, provided the employer with a certificate of a qualified practitioner certifying that the employee was incapable of working due to illness or injury for a specified period of time, and that that period of time coincides with the absences of the employee from work.

The arbitrator found that the employer had not disciplined the employee for his illness, but rather for his failure to provide the required medical certificate within 15 days from his return to work. While the Code was silent on the timeline for production of such a certificate, the employer was within its rights to establish a reasonable timeframe for such production. The arbitrator concluded however that the imposition of 15 demerit points was “excessive in the circumstances.” A written reprimand was substituted in its place.

Section 239 of the Canada Labour Code is considered in section 17:304 of the Illness and Absenteeism manual or its supplement, commencing at page 861 of the manual.


The fact that a physician has declared an employee fit to work does not answer the question of whether she was disabled within the meaning of the governing human rights legislation. A terminated restaurant waitress who was found to have been disabled was awarded $15,000 for injury to her dignity, feelings and self-respect, and a further $27,000 to compensate her for future lost wages.

 In 1526597 Ontario Inc., 2014 HRTO 337 (CanLII) (Cleghorn), the employee had been off work after suffering a non-work related injury resulting in a fractured tail bone. Her doctor cleared her to return to work but on a gradual reintegration having modified hours.

 The employee was terminated after she advised the franchise owner that she could not carry anything heavy. The employee, after having complained to the franchisor’s head office, was then reinstated on a modified work plan. However, after less than a month, the franchisor terminated the employee on the basis that she had missed too much time and that it had a file that contained concerns regarding her performance. No such concerns were produced to the employee, and the employer/franchise owner did not file a response to her human rights complaint.

The adjudicator concluded that the employee was disabled at the time of her termination:

The fact that the [employee] may have been declared fit to work by her physician does not impact on whether she was disabled within the meaning of the Code; the reality for the [employee] was the perception of the employer that she was disabled, and might have functional limitations, perceived or real. The health of the [employee], in the context of the workplace, was in fact well known and exhibited by her actual limitations and need for reduced hours. In fact, the [employee] did have real functional limitations, particularly with respect to lifting heavy objects.

In failing to participate in the proceedings, the employer had failed to demonstrate that accommodating the employee would have caused undue hardship, or that the termination “was based solely and exclusively on grounds not prohibited by the Code, i.e. such as prevailing economic conditions.”

In awarding damages for “injury to dignity, feelings and self-respect”, the adjudicator stated:

… I am mindful that the conduct of the [employer] was heavy handed and unjustifiable. The evidence suggests that the [employer] found the [employee] to be an inconvenience and, ultimately, expendable. The termination under these circumstances had a significant impact on her and her family. Notwithstanding all of that, the Code is remedial, not punitive.

The employee was awarded $15,000 for injury to her dignity, feelings and self-respect.

The employee had been employed for less than three years at the time of her termination, and had obtained alternate employment by the time of the hearing. Lost wages were awarded for the period from the employee’s termination until she obtained alternate employment approximately 17 months later. The new job paid less than her former position with the employer. Accordingly, further lost wages were awarded to compensate for this difference, with such additional amount being calculated from the date of hire with the new employer to the date that this decision was rendered. This amounted to 22 weeks. The total wage loss was assessed at $27,378.

Considerations underlying the establishment of a disability are discussed in section 14:300 of the Illness and Absenteeism manual or its supplement, commencing at page 541 of the manual.


 

Subscriber-Only Manual Supplement for September 2014

The September update of the Manual Supplement has now been posted on line. The extensive Supplement is available only to subscribers of the Illness and Absenteeism Manual. It can be accessed at IllnessandAbsenteeism.com using the subscriber’s email and assigned password.

Potential subscribers can preview the cumulative manual supplement until October 15, 2014 by clicking here.