In this edition you will find:
A. Feature Case: An employee was unsuccessful in challenging his termination on the basis that the performance conditions in his last chance agreement were discriminatory. The arbitrator found that although the behaviour and performance conditions treated the employee differently than others, they were not discriminatory in that they had been included because of the employee’s conduct and not because of his addiction. The arbitrator also concluded that given the issues and experience of the parties, the five year term of the agreement was not unreasonable. [Click here]
B. Recent Decisions of General Interest:
1. An employee who intentionally overstayed a leave of absence to undertake further yoga training in Bali was reinstated with all lost wages and benefits. Although her conduct was found to be insubordinate, the arbitrator substituted a warning in place of the termination. [Click here]
2. A cognitively impaired employee with borderline intelligence, having an I.Q. of 74, was found to be disabled within the provisions of the Saskatchewan Human Rights Code. Her failure to maintain regular attendance was linked to her disability and was therefore not culpable. However, her dishonesty in explaining her absences was not causally linked to that disability. She was capable of choosing to be honest with her employer but she chose to do otherwise. [Click here]
3. An alcoholic employee who breached a last chance agreement was reinstated without compensation on the basis of one-final last chance. The case was distinguished from others on the basis that the post-discharge evidence was extremely positive. [Click here]
4. An employee who failed to report for work on a series of occasions was unsuccessful in challenging his termination. The claim that his failure was attributable to the effect of prescribed medication was rejected on the basis that the employee failed to tender meaningful medical information. [Click here]
C. Subscriber-Only Manual Supplement for Summer 2014: General Preview Now Available until September 15, 2014 [Click here]
A. Feature Case: An employee was unsuccessful in challenging his termination on the basis that the performance conditions in his last chance agreement were discriminatory. The arbitrator found that although the behaviour and performance conditions treated the employee differently than others, they were not discriminatory in that they had been included because of the employee’s conduct and not because of his addiction. The arbitrator also concluded that given the issues and experience of the parties, the five year term of the agreement was not unreasonable.
In Corporation of the City of Niagara Falls, 2014 CanLII 6917 (ON LA) (Trachuk), the employee had abandoned his position. He subsequently contacted the employer to advise that he had a drug and alcohol problem. He was reinstated under a last chance agreement subject to his successful completion of an alcohol/drug treatment program. The agreement provided that the employee would be subject to an assessment period of 60 months during which his performance and attendance would be monitored. He would also be required to submit to drug and alcohol testing at the employer’s request and expense. A positive test or a refusal to submit to testing would result in immediate termination of employment.
Approximately one year later, the employee failed a drug and alcohol test and his employment was terminated. The parties agreed that a challenge to that termination would be put in abeyance because the employee was then commencing another rehabilitation program. When that program was completed, the employer agreed to again reinstate the employee subject to a further last chance agreement for another 60 months. This expanded agreement now included provisions that would result in termination for excessive or improper absence, for driving infractions and for any other breaches of the agreement.
Approximately 18 months later, the parties met to discuss the employer’s concerns regarding ongoing issues. Although the employer believed that the employee had violated the last chance agreement with respect to his performance and attendance, it agreed to continue his employment and to modify the agreement’s attendance requirements to make them more generous. It did so following assurance by the employee’s doctor that the employee was under regular doctor’s care and that there were no medical restrictions or job modifications/accommodations required as a result of that treatment.
Less than 12 months later, the employee was terminated after he stopped by his home and used the employer’s front-end loader to build a hill of snow for his girlfriend’s child. The employer terminated his employment pursuant to the last chance agreement on the basis of unacceptable performance that was worthy of disciplinary action.
The union challenged the last chance agreement on the grounds that its conditions were too broad. It contended that they should have been limited to the addiction issues that addressed “the drug recovery program, drug and alcohol testing and the requirement to maintain sobriety.” By including performance issues, the last chance agreement held the employee “to a standard of conduct to which other employees are not held,” and that such standard was discriminatory because but for the addiction, there would have been no last chance agreement imposing such conditions. Moreover, the five year term was excessive and exceeded the two year sunset provision that was applicable to other employees covered under the collective agreement. The arbitrator commented on the nature of a last chance agreement (an “LCA”):
An LCA often looks harsh when it is relied on to justify a termination. However, it must always be assessed in context. An LCA is a document negotiated between an employer and a union to save the job of someone whose employment would otherwise be terminated. The employer and the union choose to acknowledge an employee’s addiction and negotiate terms that they and the employee can live with. It is a way to accommodate the disability of an employee with an addiction but it is still a compromise. The [employee] has the certainty of getting his job back, which he would not have if he had to pursue a grievance to arbitration. However, in exchange, he has to agree to some terms and conditions of employment that other employees are not subject to. That is the quid pro quo for the employer to take another chance on an employee whose behaviour it has already determined was worthy of termination. The LCA gives the employer comfort that the [employee] has made a commitment to rehabilitation and good behaviour. However, it also usually provides that termination will be the result of a violation of those terms. An LCA almost always limits an arbitrator’s jurisdiction to determining whether its terms have been violated. That must be understood in the context of what would have occurred if the parties had not agreed to the LCA. If the grievance proceeded to arbitration, the culpability of the employee’s conduct would have to be assessed in the context of his addiction. It cannot be assumed that the [employee] would have been reinstated. Many such grievances are dismissed because no causal connection has been established between the misconduct and the addiction or because the arbitrator finds that the addiction cannot be accommodated. Therefore, an LCA is an agreement negotiated and signed by unions, employers and employees in situations where each has something to gain and something to lose and there is no certaity about the alternative. All of the parties to such an agreement should be able to rely on its terms …
The arbitrator stated that in this case, the employee “has had the benefit of being reinstated. The [employer] should be able to rely on its right to terminate him if he has violated the terms of the agreement.” The arbitrator commented that the provisions dealing with behaviour and performance were “included in the LCA because of the [employee’s] misconduct, not because of his addiction.”
In addressing the union’s argument that the employee’s differential treatment was discriminatory, arbitrator Trachuk stated:
… [This] LCA was negotiated and renegotiated to deal with both culpable and non-culpable conduct. Ideally, an LCA that is intended to deal with both addiction and culpable misconduct will clearly separate the terms that apply to each. However, the fact that one does not do that does not mean that the [employee] has been the victim of discrimination. It is necessary to look at how the [employer] has applied the terms of the LCA. In this case, the parties agreed that the employer would monitor the [employee’s] performance and if it was unacceptable it could rely on his past culpable behaviour. It does not state that unacceptable work performance will lead to termination but the union has not disputed that a failure to maintain acceptable performance would be a violation of the LCA. However, that is not a standard of perfection that has not been applied to other employees. All employees are held to a standard of acceptable performance … The parties have agreed to manage the [employee’s] employment issues this way and it is not inherently discriminatory … The [employer] is now justified in relying upon the parties’ agreement to limit my discretion to substitute another penalty.
The arbitrator concluded that given the issues and experience of the parties, the length of the agreement was not excessive. The grievance was dismissed.
It appears that the arbitrator was not referred to those decisions where ancillary attendance or performance requirements in last chance agreements were held to be unenforceable because they imposed consequences that were more stringent than those employed on the general employee population. These cases and suggestions for dealing with this issue are discussed in sections 16:206 and 16:209 of the Illness and Absenteeism manual, commencing at pages 766 and 787 respectively.
Recent Decisions of General Interest
1. An employee who intentionally overstayed a leave of absence to undertake further yoga training in Bali was reinstated with all lost wages and benefits. Although her conduct was found to be insubordinate, the arbitrator substituted a warning in place of the termination.
In Temple Gardens Mineral Spa Inc., 2014 CanLII 27412 (SK LA) (Hood), the employee had been granted a five week educational leave to train as a yoga teacher in Bali. At the conclusion of her training, the school had offered to train her for the next level at no expense to herself. She attempted to extend her leave but the employer denied her request. Nevertheless, she decided that she would stay. She altered her return arrangements and completed the second level.
The employer suspected that the employee had no intent of returning following her initial leave. When she failed to provide documentary confirmation of her initial return date, the employer concluded that she “was dishonest and never had any intention of coming back in the first place.”
The issue of leaves of absence was addressed in the collective agreement. The clause provided that “management’s decision [was] subject to arbitral review for its reasonableness, fairness and consistency with the terms of the collective agreement.” While the union bore “the onus to prove on a balance of probabilities that the Employer violated [the leave provisions] of the Collective Agreement when it denied the … request for an extension of the leave of absence …”, the employer was obligated to prove that the employee’s failure to return as originally agreed was conduct meriting discipline.
Although the employer had been concerned that granting the extension would have left it short-staffed, the arbitrator concluded that “the Employer’s belief that the Grievor was dishonest was the main reason, if not the sole reason, for not approving the leave. The leave was denied without any effort or attempt made by the Employer to accommodate the leave … In the circumstances and considering the evidence as a whole … there was no defendable reason to refuse the leave and we find the Employer in violation of the collective agreement.”
The arbitrator found that the employee “was insubordinate in failing to return to work as agreed and [such] insubordination [was] worthy of discipline.” In considering amelioration of the penalty, the arbitrator stated “that the Employer’s unsubstantiated claim the [employee] was dishonest is a mitigating factor in favour of … a lesser penalty.” In the result, he substituted a warning to the effect “that any absence from work without satisfactory reasons may be subject to discipline up to and including dismissal.”
The employee was to be compensated for all lost wages and benefits.
By way of comment, the discipline that was substituted appears to be neglible when contrasted to other cases where employees have not returned to work as scheduled following a leave of absence.
The issue of discipline for blameworthy absenteeism is considered in section 17:201 of the Illness and Absenteeism manual, commencing at page 812 of the manual.
2. A cognitively impaired employee with borderline intelligence (an I.Q. of 73), was found to be disabled within the provisions of the Saskatchewan Human Rights Code. Her failure to maintain regular attendance was linked to her disability and was therefore not culpable. However, her dishonesty in explaining her absences was not causally linked to that disability. She was capable of choosing to be honest with her employer but she chose to do otherwise.
In Cypress Health Region, 2014 CanLII 21601 (SK LA) (Stevenson), the employee had worked for the employer or a related health care employer as a casual Continuing Care Assistant (Health Care Aid) and an Environmental Services Worker (Cleaner). During the last nine months of her employment, she had been employed as a casual Environmental Services Worker. That employment had been reinstated following the employee’s termination for having filed inaccurate mileage claims along with a number of other performance issues.
The termination at issue in this case arose when the employee accepted two shifts and then failed to report. The employer was not advised of her intended absence. When questioned, the employee provided an ever-changing story that appeared to have no basis in fact.
Three months after the termination, the employer was advised that the employee suffered from a disability (cognitive impairment) that required accommodation.
Approximately two years earlier, and unbenownst to the employer, the employee had undergone a psychological examination in the context of her ability to properly care for her children. Her full scale IQ score was 73. That ranked her at the fourth percentile when compared to people of her age. It was said to be within the borderline range of general intellectual ability. The report stated:
While individuals with borderline intelligence function at a higher level than those classified as mentally retarded, it is still expected that their lower cognitive ability would result in some problems in everyday functioning. Ability to cope with stressors, judgment, planning/organizing and social/occupational functioning are areas that are commonly affected. Therefore, it is possible that this explains some of the difficulties that [the employee] has had in successfully managing her life.
A subsequent psychiatric examination conducted following the employee’s termination opined that the employee had been suffering from an Axis 1 Adjustment Disorder with mixed anxious and depressed mood and that she was considered to have Borderline Intellectual Functioning.
The adjudicator concluded that the employee was suffering from a disability. The term “disability” as defined in the Saskatchewan Human Rights Code includes “an intellectual disability or impairment”, “a learning disability or a dysfunction in one or more of the processes involved in the comprehension or use of symbols or spoken language” and “a mental disorder.” The term “mental disorder” is defined as meaning “a disorder of thought, perception, feelings or behaviour that impairs a person’s (i) judgment; (ii) capacity to recognize reality; (iii) ability to associate with others; or (iv) ability to meet the ordinary demands of life.”
The arbitrator adopted the “hybrid” model as the appropriate basis for analysis. After having concluded that the employee’s conduct was worthy of discipline, he then considered whether the employee was suffering from a disability (as opposed to a disciplinary analysis where the question would be whether the employer’s disciplinary response had been reasonable).
The arbitrator summarized the employee’s continuing work performance issues in the following terms:
[The employee’s unchallenged record included] ongoing attendance issues, work performance issues, honesty and truthfulness issues, a last chance agreement and issues of judgment.
The arbitrator concluded that the evidence established that:
[The employee’s] work performance issues were causally linked to her mental disability. The diagnosis of borderline intelligence with lower cognitive ability could reasonably result in problems with everyday functioning; the ability to cope with stressors, judgment, planning/organization and social/occupational function are areas commonly affected. [The employee’s] attendance, performance and relationship issues appear to have been the type of conduct that could reasonably be expected as a result of an inability to cope with the stressors in her life [and her inability to] exercise judgment [and] planning/organization. The [employee’s] work record illustrates an inability to understand and follow through on workplace issues, especially to organize her life to attend work on a regular basis.
The arbitrator then concluded that the employee’s failure to attend work on the days in question was linked to her mental disability and, as such, was not culpable. However, he also concluded:
The evidence does not establish a link between the [employee’s] mental disability and her dishonesty in relation to her absences and her apparent conscious effort to not communicate with her superiors while seeking the name of her Union representative, well-knowing that her conduct was inappropriate and that she was likely facing serious consequences against which she had been previously cautioned. There is no evidence that the [employee’s] dishonesty is causally linked to her mental disability. [She] was capable of choosing to be honest with her Employer; she chose to be dishonest.
The arbitrator then considered whether the employer had accommodated the employee to the point of undue hardship. Although the employer had not known of the disability, it becomes incumbent on the employer to now accommodate the employee.
In considering the appropriate discipline to be imposed for the employee’s dishonesty, the penalty must reflect the employee’s past disciplinary record:
This record ought not to be revisited, but must be seen in a different light in view of the established mental disability …
A two month suspension was imposed in place of the termination. The employee was to be reinstated as a casual Environmental Services Worker, subject to conditions that included an independent assessment and reports from health care providers that addressed the employee’s progress. The conditions included a provision that the “Employer may terminate the [employee’s] employment for just cause at any time in accordance with the Collective Agreement.”
The employee was partially compensated for her lost wages.
The issue 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.
3. An alcoholic employee who breached a last chance agreement was reinstated without compensation on the basis of one-final last chance. The case was distinguished from others on the basis that the post-discharge evidence was extremely positive.
In New Flyer Industries Canada ULC, 2014 CanLII 22978 (MB LA) (Werier), an alcoholic employee who had been terminated after having accumulated the maximum number of disciplinary demerits points was reinstated pursuant to the terms of a last chance agreement.
After having attended a four week residential alcohol treatment program (the third in a nine year period), the parties agreed that the employee would be reinstated pursuant to a last chance agreement. Shortly thereafter, the employee failed an alcohol test. He then entered into a further three week residential treatment program. The union then requested that the employer extend a further last chance treatment agreement, which it ultimately did. The three weeks in the program were treated as qualifying for short term disability benefits, while the subsequent two month period prior to the actual reinstatement was characterized as a suspension. Less than one month later, the employee tested positive for alcohol and his employment was once again terminated, with the employer taking the position that matters had now reached the point of undue hardship.The employee had had two previous last chance agreements, two failed tests, and multiple rounds of in-house treatment.
The arbitrator identified that cases such as this require a consideration of the competing factors. “On the one hand, the law is clear that the terms of LCA’s normally are to be enforced if there is a breach by the employee … On the other hand, it is widely accepted that alcohol addiction is an illness and a recognized disability under human rights legislation. It is also widely accepted that it is not easy to ‘beat the illness’ and relapses often occur. When coupled with another disability [in this case depression], an individual faces significant challenges requiring excellent treatment, support, and individual dedication, resolve and effort to overcome the illness.”
The arbitrator concluded that there was sufficient evidence to warrant a final reinstatement. In doing so, he held that the post-dicharge evidence, all of which was extremely positive, was admissible and relevant to assessing whether the termination should be set aside. The employee testified. He was found to be receiving active on-going treatment and was sober and committed. He was doing everything possible to maintain sobriety. The prospects for rehabilitation were excellent. The arbitrator considered that the quality of the post discharge evidence distinguished “this case from others where arbitrators found this type of evidence to be missing or not to be of a compelling nature.” The arbitrator found that further accommodation would not constitute an undue hardship.
The employee was reinstated without compensation for the intervening six months. The terms of reinstatement provided for an absolute abstention from all alcohol and drugs, a requirement to attend Alcoholic Anonymous meetings on a regular basis and to attend medical care on a regular basis for his depression, and random testing for alcohol or drug use. Any positive test, or any absence from work or work-related misconduct due to alcohol or drugs, would result in immediate discharge. The conditions were to remain in effect as long as the employee was employed by the employer.
The issue of the enforcement of last chance agreements involving addiction is addressed in section 15:403 of the Illness and Absenteeism manual, commencing at page 748, while issues relating to subsequent event evidence are considered in section 14:204 and in the case of causation, in sections 14:320; 14:410; 15:301, 15:302 and 15:303 of either the Illness and Absenteeism manual or its supplement.
4. An employee who failed to report for work on a series of occasions was unsuccessful in challenging his termination. The claim that his failure was attributable to the effect of prescribed medication was rejected on the basis that the employee failed to tender meaningful medical information.
In Alphair Ventilating Systems Inc., 2014 CanLII 22977 (MB LA) (Peltz), a 15 year employee was terminated for having failed to report to work the previous day. Progressive discipline (a verbal warning, a written warning, and a three day suspension) had been imposed for similar infractions over the previous two years. The employer treated the latest occurrence as a culminating incident. The employee was aware of the employer’s attendance policy and had been notified, at the time of his suspension, that a further violation would result in the termination of his employment.
The employee suffered some health issues, and he testified that some of his medication caused him difficulty with sleeping. He couldn’t sleep, and then when he finally fell asleep, he would sleep late. He was considered to be a steady worker who performed good quality work. The employee had not, even by the time of the hearing, obtained a report from his physician documenting his diagnosis, medications and side effects. He did not have medical verification that it was his medication that was causing him to sleep in.
The arbitrator framed the real issue as being whether an alternative penalty should be substituted in place of the termination. The arbitrator stated:
Knowledge and control of personal health information rests entirely with the employee. It was up to the [employee] to furnish meaningful medical information if he needed some kind of accommodation. Similarly the onus was on the [employee] to obtain a medical report for the arbitration hearing if he wanted consideration given to his condition as part of the mitigation argument … I know he took a sleeping pill on the night in question … [b]ut I cannot make any finding that the employee’s culpable behaviour … was caused, in whole or in part, by a medical condition … Lacking this key ingredient, the plea in mitigation is gravely undermined … [T]he key linkage between medical condition and non-attendance was missing here.
… [A]bsent a medical condition that precludes attendance, the [employee] must bear responsibility for getting himself to work.
In upholding the termination, the arbitrator agreed that the employee “minimized his personal responsibility and deflected fault for his failures.”
The issue of proof of causation is considered in section 15:301 of the Illness and Absenteeism manual
C. Subscriber-Only Manual Supplement for Summer 2014
The Summer 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 supplement until September 15, 2014 by clicking here.