" /> September 2016 Newsletter | Illness & Absenteeism
 

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Each month we will send out updates on new cases received and updates to labour and employment laws affecting you. All the questions below are required.

 

September 2016 Newsletter

In this edition you will find:

Feature Case: An employee whose absence was attributable to a bout of kidney stones was not considered to be disabled within the meaning of the British Columbia Human Rights Code, for his 13 week absence was found to be a transitory episode that did not amount to a disability.     [Click here]

Recent Decisions of General Interest:

  1. Unless the collective agreement provides otherwise, a union will not be entitled to production of employee information for the purpose of enabling it to monitor the employer’s administration of the terms of the collective agreement. [Click here]

  2. An arbitrator, in upholding the termination of a “malingering employee”, distinguished between pure and partial malingering. Pure malingering existed where the employee committed conscious fraudulent behaviour where no illness existed, while partial malingering was said to exist where the employee embellished or exaggerated an underlying physical or mental disorder. [Click here]

  3. Absence attributable to illness will not generally result in a pro-rating of vacation entitlement that is based on length of service unless the collective agreement specifically or impliedly provides otherwise. [Click here]

  4. A termination was upheld where an employee failed to return to work on the first day following the conclusion of his vacation. The employee’s lack of candour and his apparent “imperviousness to discipline” were factors in the decision, while the fact that the employee suffered from multiple sclerosis was not considered relevant. [Click here]
  5. Production of information for the purpose of assessing an employee’s credibility may be denied where the employee has admitted the material facts in issue. [Click here] 

 


 

Feature Case: An employee whose absence was attributable to a bout of kidney stones was not considered to be disabled within the meaning of the British Columbia Human Rights Code, for his 13 week absence was found to be a transitory episode that did not amount to a disability.

In Sunrise Poultry Ltd, 2016 CanLII 36352 (Saunders), the employee was dismissed for non-culpable excessive absenteeism.

The employer had an attendance management program that had been adopted and administered with knowledge of and feedback from the union.

After having determined that the employee had a history of excessive absenteeism, the arbitrator  considered whether the employee was capable of regular attendance in the future. He stated:

The nature of the employee’s absences were typically short term. The causes are varied. The record is such that it is reasonable to infer the [employee] will not maintain satisfactory attendance in the future.

The Union seeks to displace that inference by pointing to recent medical notes. Those notes clear the [employee] to return to work from his bout with kidney stones without restriction. The Union also points to the [employee’s testimony that his various ailments are now resolved.

I accept that the [employee’s] bout with kidney stones is now resolved and will be managed by regular water consumption. The medical notes in evidence are clear to that extent. However, I am not satisfied on the basis of the [employee’s] assertion that all his other ailments are now all resolved, that his pattern of absenteeism will not persist, despite repeated attempts to address the issue.

In finding that the employer had cause for termination, the arbitrator stated:

Having considered the [employee’s] past record of absenteeism, the nature and causes of the absences, the persistence of absenteeism, the effect of earlier attempts to address the issue, the frequency and duration of absences, as well as relevant medical opinions, I am not satisfied the [employee] is capable of satisfactory attendance in the future.

The arbitrator then considered the impact of the British Columbia Human Rights Code. Did the employee’s experience with kidney stones constitute a disability under the Code?  In answering that question n the negative, the arbitrator referenced the British Columbia Tribunal’s decisions in Winter [2013] B.C.H.R.T.D No. 285 and  in Li [2014] BCHRT 270. In both cases, the Tribunal adopted the following definition of a physical disability:

“… a state that is involuntary, has some degree of permanence and impairs a person’s ability, in some measure, to carry out the normal functions of life.”

Arbitrator Saunders continued:

In Winter the complainant was absent due to symptoms of a soft tissue injury that required up to a 8 week recovery period. Similarly, in Li, the Tribunal held that not every medical problem is a physical disability and adopted the following definition set out in Ma, 2014 BCHRT 180 (CanLII):

“… the concept of disability, for human rights purposes, has generally been held to involve a physiological state that is involuntary and has a degree of severity, permanence and/or persistence. Generally, the disability impairs a person’s ability, in some measure, to carry out  the normal functions of life to some degree and poses an impediment to a person’s participation in the economic or other areas of life which the Code seeks to protect against. It is a case-by-case analysis.

In concluding that the employee’s kidney stone condition did not constitute a disability, the arbitrator commented:

In the present case, the [employee] was absent due to symptoms associated with a bout of kidney stones. There is nothing to suggest he recovered outside of a normal time frame. Further, the [employee] recovered with no functional limitations tied to his ability to attend work (apart from a brief period of a gradual return to work). Applying the test set out above to the [employee’s] overall experience with kidney stones, I conclude his symptoms during his roughly 13 week absence is appropriately characterized as a transitory episode, not permanent in nature. Therefore, I find the [employee] has not established his experience with kidney stones is a disability within the meaning of the Code.

The Union had relied on the decision of an Ontario Human Rights Tribunal in Hitchcock, [2015] O.H.R.T.D. No. 735, but that decision was distinguished by the arbitrator on the basis that the case applied a definition of disability that was unique to the Ontario legislation.

Given that the employee did not establish a prima facie case of discrimination in the sense that he was not disabled, the tests for a bona fide occupational requirement and the duty to accommodate did not come into play. The grievance was denied.

This case should be considered in the context of Lafarge Canada Inc., 2015 HRTO 731 (CanLII) (Eyolfson). In that case, the employee also had a history of kidney stone pain. The arbitrator accepted that the employee was suffering from a disabling condition that constituted a disability within the meaning of the Ontario Human Rights Code. However, the employee’s condition was episodic in nature, and that raised the issue of whether the employee had disability-related needs related to his kidney pain at the time relevant to the allegations raised in the application.

 The question of whether an employee’s medical condition constitutes a disability is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.

 


 

Recent Decisions of General Interest:

1. Unless the collective agreement provides otherwise, a union will not be entitled to production of employee information for the purpose of enabling it to monitor the employer’s administration of the terms of the collective agreement.

In Cariboo Pulp and Paper Company, 2015 CanLII 15610 (BC LA) (Kinzie), the union sought disclosure of the names of employees who had elected to take a payout of one week’s vacation pursuant to a clause in the collective agreement. The employer resisted on the basis that the union had not established any statutory, contractual or privacy right to have that information disclosed, and further, that only one employee had given her consent to such disclosure.

The arbitrator held in favour of the employer, saying that he concurred with the distinction drawn in B.C. Public School Employer’s Association, (2012), 219 L.A.C. (4th) 391 (Lanyon), where it was determined that  there is a significant difference between a demand for basic contact information concerning the employees of a bargaining unit [employee names, addresses, telephone numbers and the like] and a demand for a specialized list of names that are sought by the union to monitor the administration of the collective agreement by the Employer.

The arbitrator concluded that “in order to require the production of such a specialized list of employees, the collective agreement must contain a provision to that effect.”

 The matter of production of employee records for monitoring purposes is considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.


 

2. An arbitrator, in upholding the termination of a “malingering employee”, distinguished between pure and partial malingering. Pure malingering existed where the employee committed conscious fraudulent behaviour where no illness existed, while partial malingering was said to exist where the employee embellished or exaggerated an underlying physical or mental disorder.

In Air Canada, 2015 CanLII 15601 (BC LA) (McPhillips), the employee grieved the denial of his disability benefits under an insured disability plan along with his subsequent termination when he ultimately refused to return to work.

The employee had applied for disability benefits after having been disciplined for inappropriate behaviour. In support of  his application, the employee submitted a number of medical reports stating that he was suffering from severe anxiety due to workplace stress. The insurer denied the claim on the basis that the medical information did not establish that the employee was unable to function and perform the duties of his job or of an accommodated position;  that the medical information did not describe the extent and severity of the diagnosis and how it had limited the employee’s ability to work for the employer; and that the medical information received confirmed a diagnosis associated with signs and symptoms that were directly related to workplace issues.

 In the course of the hearing, it was agreed that that the employee would attend an Independent Medical Examination (“IME”), the result of which would determine his eligibility for benefits under the plan. The parties agreed to be bound by the medical conclusions that were drawn, and an order was issued to that effect.

The Independent  Examiner considered whether the employee would have been unable to return to work during the relevant period. He concluded that the employee was malingering, for he had no genuine non-volitional disorder which explained the employee’s overall expressed complaints and extent of alleged disability. The doctor stated that “malingering is the deliberate and conscious fraudulent exaggeration, embellishment, and/or creation of physical and/or mental disorder symptomology in order to obtain secondary gain, such as a goal of financial compensation or work responsibilities.” He went on to state that in his opinion, “malingering comes in two forms, Pure Malingering and Partial Malingering”:

  1. Pure malingering is conscious fraudulent behaviour portraying illness when indeed no actual illness exists (that is, there is no underlying physical or mental disorder and one is simply fabricating the entire spectrum of symptoms for personal gain).
  2. Partial malingering is conscious embellishment and exaggeration of symptoms of some underlying physical or mental disorder, however the embellishment and exaggeration leads to a picture of apparent poor health which is grossly much greater than the actual underlying disorder (that is, there is some underlying physical and /or mental difficulties however one is grossly embellishing the symptomology for personal purposes).

The Examiner concluded that the “only reasonable explanation for the employee’s overall presentation of alleged physical concerns is either an unconscious somatoform disorder [i.e. a form of mental illness that causes a person to experience one or more bodily symptoms including pain, with the distress that they feel often being untraceable to a particular cause] or malingering.” The Examiner stated that in his opinion, there was little information “which favours the clinical impression of an unconscious somatoform disorder making such [conclusion] an unreasonable hypothesis, and there is a considerable proportion of evidence indicating malingering is the correct clinical impression” The Examiner stated that in his opinion, the employee was “exhibiting at least partial malingering of marked severity, and may be exhibiting pure malingering in respect to at least his physical concerns.”

The Examiner then reviewed the legitimacy of each of the employee’s complaints and concluded that the employee’s current presentation was “largely a result of his longstanding personality characteristics, sense of entitlement, workplace issues, and secondary gain.” While the employee was reluctant and/or hesitant to return to his former position in the workplace …, such reluctance and/or hesitancy, in of itself, should not, and cannot be deemed a medically disabling condition. In my opinion, his hesitancy/reluctance is of conscious derivation [rather than medically disabling]. … The wish to be perceived as disabled and/or significantly impaired in of itself, cannot, and should not, be deemed a medical impairing or disabling condition.”

Following receipt of the Examiner’s report, the employer elected to terminate the employee based on dishonesty with respect to the reporting of his medical condition and his claim for medical benefits based thereon. Shortly thereafter, the employee attended counselling sessions with a second physician. The arbitrator held that a letter from that physician was inadmissible in dealing with the “ benefit claims”  grievance, for the parties had agreed before him “to be bound by the medical conclusions drawn by the independent practitioner and, in my view, neither  party cannot now resile from that position.”  The benefits grievance was therefore denied.

The arbitrator entertained submissions by the parties regarding whether the letter concerning post-termination counselling was admissible in the context of the termination grievance. That letter stated in part that it was the physician’s opinion that the employee was suffering from symptoms of  major depressive disorder, with the employee claiming at the hearing that the imposition of discipline was the cause of such extreme anxiety that he could not work for over a year.” In rejecting that contention, the arbitrator stated that “on its face, such a reaction to what has been described elsewhere as a rather “innocuous event” would have to be supported by a very clear medical diagnosis linking that specific diagnosis to a particular medical condition. However, no such linkage has been established …”

In considering that letter, the arbitrator stated:

The first observation to be made is that there is no evidence in this two paragraph letter that there was any testing done with the [employee] nor is there any indication that [the doctor] was provided with and reviewed any background  information as was the case with [the Examiner].” Additionally, the doctor did not make any reference in his letter to the contents of the report of [the Examiner]. A further point is that virtually the entire two paragraphs of [the doctor’s report] appears to contain self-reporting by the [employee]. Unfortunately, this letter from [the doctor] falls well short of containing the sort of analysis that would inform to the decision that is required here.

The arbitrator was also critical of the doctor’s letter in that it did not provide any explanation for the employee’s self-reporting where such reporting contradicted the information that the employee reported to the Examiner.

In rejecting the possibility of reinstating the employee, the arbitrator stated that the “employment relationship is irreparably broken and the exercise of any discretion on my part to attempt to rehabilitate it would be completely without any expectation of success.”

 Issues of malingering and discipline for blameworthy absenteeism are considered in Chapters 2:400 and 17:200 of the Illness and Absenteeism manual and its supplement. 


 

3. Absence attributable to illness will not generally result in a pro-rating of vacation entitlement that is based on length of service unless the collective agreement specifically or impliedly provides otherwise.

In Burnaby (City), 2015 CanLII 90829 (BC LA) (Hall), the union challenged two collective agreement provisions on the basis that they violated the Human Rights Code of British Columbia. The first provision stipulated that an employee’s vacation entitlement would be prorated where the employee had been absent as a result of sick leave or workers compensation for a period exceeding 60 accumulated working days within 12 consecutive months, while the second prorated the vacation pay of employees who had been absent on maternity or parental leave.

The arbitrator began his analysis by stating that the outcome of grievances such as this “typically depends on the underlying purpose for the benefit in question. More specifically, is the collective agreement entitlement based on the performance of work or does it relate to access or status as an employee?”

On the issue of prorating vacation pay, the arbitrator proceeded on the basis that “arbitral jurisprudence generally supports the position that vacation entitlement which is predicated on “length of service” is not affected by an employee’s involuntary absence unless there is clear language in the collective agreement which explicitly or by implication purports otherwise.” After having examined the collective agreement, the arbitrator concluded that vacation entitlement depended on “service” or continuous employment and was not a work-driven benefit. Therefore, absent a clear expression of intent to the contrary, regular employees absent from work should receive the full entitlement as part of their employment status.

The employer acknowledged the differential vacation treatment of employees but submitted that the distinctions were linked to negotiated trade-offs under the collective agreements. The arbitrator rejected that contention.

In the result, both grievances were upheld. A declaration issued, with the discriminatory nature of the two provisions being remitted to the parties for resolution during their pending round of negotiations. Jurisdiction was retained to consider other remedies if the parties were unable to resolve the matter as between themselves.

 The pro-rating of employee benefits because of illness or disability is considered in section 14:623 of the Illness and Absenteeism manual and its supplement.


 

4. A termination was upheld where an employee failed to return to work on the first day following the conclusion of his vacation. The employee’s lack of candour and his apparent “imperviousness to discipline” were factors in the decision, while the fact that the employee suffered from multiple sclerosis was not considered relevant.

In Budget Rent A Car Ltd, 2015 CanLII 87695 (BC LA) (McEwen), the employee was terminated for failing to report for work on his first scheduled shift following his vacation. The employee justified his failure on the basis that he misunderstood when he was to return.

The employee suffered from multiple sclerosis. He had a history of attendance issues and had frequently been warned regarding what were considered to be culpable absences. The termination was upheld. The arbitrator stated that she was satisfied that

 the [employee] has demonstrated himself to be impervious to discipline; incapable of improvement. Despite the Employer’s many efforts to support and encourage him; to alert him to the consequences of his ongoing acts of misconduct, these efforts have failed to achieve their end.

The culminating offence is serious in that it compromises the Employer’s ability to efficiently run its business; the [employee’s] record is very poor – multiple attendance and other offences, whether attracting discipline or not; the final warning effected no improvement in behaviour; and the [employee’s] lack of credibility speaks against the prospects of rehabilitation. In short, the employer has established that the employment relationship has been irrevocably ruptured.

The grievance was dismissed.

The employee’s multiple sclerosis was not a factor in the termination.

The matter of a disciplinary termination for blameworthy absenteeism and the extent to which an employee’s disability was a factor in the employee’s termination are considered in sections 14:300 and 17:200 of the Illness and Absenteeism manual and its supplement.


5. Production of information for the purpose of assessing an employee’s credibility may be denied where the employee has admitted the material facts in issue.

In Ridley Terminals Inc., 2016 CanLII 9102 (BC LA) (Saunders),  the employer sought production of material that it alleged was relevant in determining the employee’s involvement in and motivation for posting an internet link that contained material that was critical of the employer. The employer contended that this information was necessary to test the employee’s credibility.

The arbitrator stated that the employee had admitted the misconduct and that none of the key material facts were in issue. The Order for  Disclosure was therefore limited to matters related to the employee’s mitigation efforts.

Production of employee documents to challenge an employee’s credibility is considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.