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Illness and Absenteeism Newsletter – Summer 2013 Edition

In this edition you will find:

A.    Featured Case: Failure to Establish Reasonable Prospect for Regular Future Attendance Not Fatal Where Employer Fails to Consider Accommodation at the Time of Termination

A termination for innocent absenteeism may be set aside where the employer fails to consider  accommodation at the time of termination. That is particularly true where the employee’s attendance, although remaining unsatisfactory, has improved somewhat in the months prior to the termination.

In Tolko Industries Ltd., 2012 CanLII 90332 (AB GAA) (Ponak), the employee was terminated for innocent absenteeism after having received many written warnings that his attendance must improve. In his seven years of employment, his absenteeism rate ranged from 17.9 % in his first year of employment, from 31.7 to 58.1 % in the next five years, and 13.4 % in his final year of employment. In all but one of these years, the plant average absenteeism rate did not exceed 5.1 %.

The union argued that the main source of the employee’s medical problems had been successfully resolved at the time of termination. It also contended that the employee had been treated more harshly in that some other employees with greater absenteeism rates had not been terminated. The arbitrator dismissed that latter argument:

With respect to disparate treatment, there is insufficient evidence to support the Union’s assertion that the grievor was treated more harshly than other employees. It is true that the Grievor did not have the worst absenteeism record in the plant; … some workers with worse records had been terminated or left voluntarily, some workers with better records had been terminated, and some workers with worse records had remained employed …

As noted by Arbitrator Sims in Government of Alberta “we are not adjudicating their cases” and he accepted that the attendance patterns of different employees will vary for legitimate reasons … The level of absenteeism of a particular employee tells us very little about the reasons for the absences and whether, for example, there is an underlying illness that is amenable to successful treatment. The authorities stress the individualized nature of cases of these kind (McGill University and Hydro-Quebec) and I am unprepared to find that just because some employees with worse absenteeism rates than the Grievor’s were not dismissed means that he was subject to unfair and discriminatory treatment. Conversely, just because employees with better attendance records may have been dismissed, does not lead to a conclusion that the same result should apply to the Grievor. Each case must be decided on its own set of facts.

Arbitrator Ponak concluded that the employee’s prognosis, at the time of dismissal, did not establish the likelihood for regular future attendance:

… the Grievor’s post-[surgical] overall attendance level, covering almost a year and a half, shows improvement and some progress compared to the pre-[surgical] period but I am unable to conclude that it rises to the level of demonstrating that the Grievor is capable of regular attendance. … there is simply no sustained period of progress post-[surgical] that instills confidence that the Grievor is capable of regular attendance. At best there is some promise of better attendance, but the pattern lacks a consistent trajectory in a positive direction. There is neither continued improvement nor stability over the 18 months at what might be considered an acceptable, or close to an acceptable level of attendance.

Nevertheless, the arbitrator set aside the termination on the basis that the employer had failed to adequately accommodate the employee:

This case ultimately turns on the duty to accommodate and whether the Employer had fully discharged its obligations at the time of dismissal. I have struggled with this question because the competing positions of the parties are defensible in law and reasonable based on the evidence. In particular, it is unclear from the evidence that even with a different accommodation the Grievor would have been able to attend regularly after his return to work [following his final surgery]. Was the Grievor’s continuing inability to sustain regular attendance due to a misalignment between his physical (and perhaps psychological) defecits and the work he was being asked to perform? Or, does the cumulative impact of the grievor’s various illnesses mean that no matter what the accommodation, he is simply incapable of sustaining regular attendance?

These are difficult questions to answer. In a close decision, and keeping in mind that the employer ultimately bears the onus in dismissal cases, I am persuaded that an additional attempt at accommodating the Grievor should be undertaken and that the Grievor should be reinstated with conditions. The only way to answer the question of whether a different accommodation can result in regular attendance is to try it, keeping in mind that employees are entitled to accommodation “to the point of undue hardship” and that once undue hardship is reached an employer’s responsibilities will be fulfilled.

In finding that the Employer could have done more to accommodate the employee short of undue hardship, arbitrator Ponak stated that the functional assessment that was relied on at the time of termination was more than three years old. A new report would have been an important starting point in any assessment of current and future accommodation efforts. With an updated functional analysis, the parties could seriously have examined modifying existing positions. Unlike the situation in Hydro-Quebec and McGill University, the employee here was working at the time of termination and had provided glimpses of better future attendance. “When an employee shows some capacity for better attendance, it increases the parties’ obligations to search for an accommodation that can turn the potential of regular attendance into a sustainable reality.”

The employee was reinstated with a direction that the parties resolve the terms of reinstatement themselves, failing which the arbitrator would do so.   Read More

The obligation to consider accommodation in the case of a termination for innocent absenteeism is considered in s. 17:300 (page 851) of the Illness and Absenteeism manual

 


B. Recent Decisions of General Interest

1. In  Hamilton (City), 2013 CanLII 34391 (ON LA) (Surdykowski), the arbitrator set forth the approach to be taken when considering the admissibility of subsequent-event evidence (or, in the case of a termination, post-termination evidence).

In that case, the union had sought to introduce subsequent-event evidence in the form of psychiatric or psychological assessments of the employee that were undertaken after the employee’s employment was terminated. The grievances were non-disciplinary in nature, in that one focused on the denial of long term disability benefits and the other grieved the employee’s non-disciplinary termination.

The governing law had been set forth in Quebec Cartier, [1995] 2 S.C.R. 1095. There the Supreme Court of Canada adopted a restrictive approach to the admissibility of post-termination evidence. The decision established that post-termination evidence would only be admissible if it shed light on the reasonableness and appropriateness of the dismissal under review at the time it was implemented.

Arbitrators outside of Quebec generally distinguished Quebec Cartier on the basis that their governing legislation, unlike that of Quebec, contained an express provision that permitted an arbitrator to substitute a lesser penalty in a disciplinary matter. They accepted that while Quebec Cartier may be binding in a non-disciplinary matter, that would not be the case where an arbitrator had a statutory discretion to ameliorate a disciplinary penalty.

Arbitrator Surdykowski rejected the distinction that arbitrators had created between disciplinary and non-disciplinary cases:

It is clear that in a discipline (including discharge) case the employer cannot use post-discipline/discharge evidence to prove just cause and the union cannot use such evidence to challenge the employer’s decision. To the extent that [some decisions] suggest the admissibility of subsequent-event evidence can depend on the nature of the claim advanced, including a claim of discrimination under the applicable Human Rights Code, I respectfully disagree. There is no reason why as a matter of principle the rule in Quebec Cartier is not equally applicable in non-discipline/discharge cases. Fundamentally the rule is one of relevance, and there is no reason why the test for relevance should depend on the nature of the decision being challenged or the claim being made. It cannot be fair to determine any claim on the basis of subsequent-event evidence which does not speak to the quality of the action or decision in issue.

Arbitrator Surdykowski concluded that the rule in Quebec Cartier was applicable notwithstanding that there was no disciplinary component to the grievances. In order for the subsequent-event evidence to be admissible “as arguably relevant, the proposed subsequent-event evidence must ‘shed light on the reasonableness and appropriateness of the [decisions] under review at the time [they were] implemented.’”

The arbitrator summarized the issue in terms of relevancy:

To repeat, the issue is really one of relevance. Relevance is determined with reference to the issues identified by the parties in the available “pleadings” and the alleged factual matrix. .Evidence that is arguably relevant to the issue (the test for admissibility at arbitration) is admissible.

Although not explicitly stated, the arbitrator`s review of Quebec Cartier can be said to incorporate the following legal principles:

  1. All relevant evidence is admissible unless otherwise excluded by a recognized legal right (such as a form of privilege or a provision in a collective agreement).
  2. Subsequent-event evidence is not relevant (in the case of a disciplinary or non-disciplinary matter) unless it sheds light on the reasonableness and appropriateness of the decisions under review at the time they were implemented.
  3. Post-discipline evidence related to questions regarding the issue of substitution of penalty will be relevant where the governing statute empowers the arbitrator to consider that question.    Read More

The law regarding subsequent-event evidence (Quebec Cartier) is considered in s. 11:204 of the Illness and Absenteeism Manual Supplement.

 

2. In Toronto Transit Commission, 2012 CanLII 51356 (ON LA) (Howe), the arbitrator concluded that it would constitute an undue hardship if he was to reinstate an addicted employee who had arrived at work in an intoxicated state.

The arbitrator`s determination was based on the efforts that the employer had made to accommodate the employee during his 12 years of employment. At the time of his discharge, the employee was employed as a janitor in its maintenance department:

… by the time of the grievor’s discharge, the [employer] had already accommodated him in numerous ways over many years. It had tolerated his very high levels of absenteeism and provided him with sick benefits to enable him to attend several rehabilitation programs. It had given him extensions of time to comply with the grievance procedure when he had failed to do so in a timely manner, and allowed meetings to be held in abeyance to give him the opportunity to complete treatment programs. It had given him a mandatory referral to an EFAP addiction counselor, reinstated him under a Last Chance Agreement, and retained him in its employ even though he breached a number of conditions of that Last Chance Agreement. With the concurrence of the Union, [the employer] had also accommodated the grievor by permitting him to work exclusively on a Monday to Friday day shift to facilitate ongoing treatment, even though he did not have sufficient seniority to successfully bid for a day shift. The lengthy list of employment infractions which the grievor committed during his five years of employment prior to [his termination], provides a further dramatic indication of the burden of the manifestations of the grievor’s disability which the [employer] had already experienced by that point.

Although the [Toronto Transit Commission] is a large employer that is publicly funded, its financial and managerial resources are not unlimited. Some of the aforementioned accommodations involve significant costs, such as the substantial cost of providing the grievor with sick benefits during his numerous absences, including those which were granted to permit him to attend various treatment programs. His very high level of absenteeism also made it more difficult for the Department to achieve its goals and objectives of providing clean and safe stations for TTC customers, particularly in the context of a Department in which absenteeism (which averages about 10.5 %) is a very significant problem. His absenteeism also adversely impacted other employees in the Department, who had to cover his absences and pick up his safety critical activities. During the twelve month period in which the grievor was accommodated on a Monday to Friday day shift even though he did not have sufficient seniority to successfully bid for a day shift, other employees with greater seniority may also have been adversely impacted by being deprived of a desirable shift to which their seniority would otherwise have entitled them.

Accommodating the grievor also imposed a significant burden on the [employer’s] managerial resources. As indicated above, managing the grievor took ten times the effort of managing other employees who did not have his level of absenteeism or problems. Moreover, getting to the point of the aforementioned Last Chance Agreement took a huge amount of managerial time and effort, as did managing the grievor under the terms of that Agreement, which he breached on a number of occasions.

The issue of accommodation of substance-addicted employees is considered in ss. 14:450 (page 585) and 15:206 (page 723) of the Illness and Absenteeism manual.

3. In Waypoint Centre for Mental Health, 2013 CanLII 15706 (ON LA) (Knopf), the arbitrator held that the employer could not rely on similar fact evidence where the evidence formed the basis of prior discipline that was subject to a “sunset clause.“

 Arbitrator Knopf found that the employee`s earlier  abuse of sick leave met the test of similar fact evidence, for the same factors (alleged abuse of sick leave and discovery of the employee engaging in sports activities while claiming to be incapable of work) were present in this case. However, the employer was contractually prohibited from introducing this evidence because the collective agreement provided that sanctions and/or discipline were to be removed from an employee’s record after a discipline-free period of 18 months. The employer could not rely on the facts underlying the incident rather than on the discipline imposed for the incident, for that would enable the record to be used and would make the clause meaningless.

The issue of the admissibility of witness evidence is considered in s. 13:300 (page 496) of the Illness and Absenteeism manual and on s. 13:500 of the on-line Manual Supplement.