llness and Absenteeism.com - April 2014 Newsletter

In this edition you will find:

• Feature Case: Establishing a Causative Link Between a Disability and an Employee’s Misconduct
• Recent Decisions of General Interest

Feature Case: Establishing a Causative Link Between a Disability and an Employee’s Misconduct

Where an employee’s misconduct is alleged to flow from an addiction or mental illness, the union must establish that such disability caused or contributed to the employee’s misconduct before human rights considerations become relevant.

Establishing a causative link between an employee’s misconduct and her disability can be problematic. Causation is a question of fact and is not to be presumed. However, the law in that regard has been imprecise. It has been stated there must be evidence that the employee’s misconduct “was caused by symptoms related to his disability.” Causation has been found to exist where the disability caused or contributed to the misconduct; where the misconduct was caused substantially by the employee’s disability; where the disability affected or contributed to the behaviour, or where there was a nexus or linkage between the disability and the misconduct.

Where the misconduct is a manifestation of  a disability (as for example, an alcoholic coming to work under the influence of alcohol), causation has often been considered to be self-evident. In most other cases, however, it will be necessary to lead medical evidence to establish the causative link.

The recent decision of arbitrator Goodfellow in City of Toronto, 2014 CanLII 1023 (ON LA) (Goodfellow) highlights the fact that evidence that is sufficient to establish the existence of a disability may not be sufficient to establish that the employee’s misconduct was attributable to that disability. In that case, the arbitrator accepted that the employee was suffering from depression based on his testimony and two brief medical notes. That evidence however was insufficient to establish that the employee’s disability was the cause of his failure to advise his employer of his intended absences or to subsequently provide medical evidence to substantiate his absences.

Arbitrator Goodfellow stated:

A review of the cases reveals that questions of causality and the need for medical evidence can arise in two contexts. The first is in relation to an argument that behaviour that would otherwise be disciplinable is rendered non-disciplinable because of a disability. The second is in connection with a mitigation argument …

At least in the first of these contexts, what is expressed is the need for a “causal link”, “connection” or “nexus” between the established disability and the otherwise disciplinable misconduct. (TRW Canada Ltd [(2013), 229 L.A.C. (4th) 382 (Sheehan)] also uses the phrase “proximate cause”.) The question is how is that causal link to be established – on the basis of what evidence? Is there a requirement for medical evidence beyond that which provided for the finding of “disability” in the first place? If so, how directly must that evidence speak to the question? Must there be medical evidence that addresses the connection specifically, i.e. in relation to the grievor’s own actions or inactions, or is it enough if there is evidence that simply refers (e.g. after the fact) to the kind of behaviour that is in issue? Is a simple diagnosis with an accompanying description of symptoms sufficient or is even that not required?

Perhaps not surprisingly, there appears to be no “one size fits all” answer to these questions. Different arbitrators have taken different approaches, and that is no doubt at least in part due to the varieties of behaviour sought to be explained. What does appear clear, however, is that there is a distinct arbitral preference for medical evidence that, if not addressing the question directly, at least provides something beyond the basic diagnosis from which that connection can reasonably be drawn. Without such evidence, in my opinion, the Union runs the substantial risk of a finding that the onus has not been met – a risk that increases, not decreases, with the scope and extent of the behaviour that is in issue.

That is precisely the situation here. There is no medical evidence that addresses or even touches on the point. The two notes/reports from the family doctor (one seven months before, the other two weeks after, termination … provide only the most basic of diagnoses (that seems to vary) and only the second note/report (the one that came after termination) offers any description of symptoms. However, there is nothing in that brief post-termination list that, in my opinion, would support the conclusion that the grievor was unable to call in or obtain medical notes, even after the fact.

…I am not an expert in depression, still less of the grievor’s particular experience of it. I do recognize, however, that it is possible that depression may well provide an explanation for some or all of it. However, without at least some medical evidence to that effect or, at least, from which such a conclusion could reasonably be drawn, I regret that I am unable to make that finding. I am unable to conclude that the grievor’s depression provides a satisfactory explanation for his failure to meet the specific employment obligations for which he was disciplined and discharged. The causal link has not been established.

The arbitrator then proceeded to consider whether he should exercise his statutory authority to substitute a lesser penalty. He determined that he would not.

The issue of causation in the context of improper conduct allegedly attributable to a disability is considered in sections 14:330 and 15:301 of the Illness and Absenteeism manual, commencing at pages 557 and 724 respectively.

Recent Decisions of General Interest

1. The timing of an employee’s termination may lead to an inference that her recent disability was at least a factor in an employer’s decision to terminate her employment.

 In New Directions Aromatics Inc., 2013 HRTO 2102 (CanLII) (Pickel), the adjudicator rejected the employer’s assertion that the employee had been terminated because she was not a “good fit.”

The adjudicator found that the employee “met her burden of proving discrimination due to the timing of her termination as well as the lack of any credible rational explanation from the [employer] regarding the reasons for the termination.” The adjudicator summarized the relevant law in the following terms:

The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that her disability was a factor in the respondent’s actions … If an applicant makes out a prima facie case of discrimination, the evidential burden shifts to the respondent to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence …

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent … However, it is well-established in human rights law that the protected ground need only be one factor in a termination decision in order to find a violation of the Code. The protected ground does not have to be the only or primary factor leading to the termination …

… The timing of the applicant’s termination gives rise to a strong inference that her shoulder injury was at least a factor in the respondent’s decision to terminate her employment … The lack of a reasonable explanation for the timing of a termination of employment is a factor to consider when determining whether that termination was influenced by a prohibited ground of discrimination… 

The adjudicator concluded that the employee had met her burden of showing that, on a balance of probabilities, her disability was a factor in the respondent’s decision to terminate her employment.

The issue of prima facie proof of discrimination is addressed in section 14:410 of the Illness and Absenteeism manual, commencing at pages 562 of the manual.

2. A supervisor’s “public request” for medical documentation can constitute harassment contrary to the provisions of a human rights code.

In Toyota Motor Manufacturing Canada Inc., 2013 HRTO 2111 (CanLII) (Kershaw), the employee suffered a workplace injury that caused her to be placed on modified duties. In upholding an allegation of harassment contrary to the Human Rights Code, the adjudicator stated:

… The employee’s supervisor asked her more than once [for confirmation of her attendance at an MRI] and that he was not discreet about asking … he rolled his eyes when she tried to explain to him why she had been absent [on the day following the MRI] …

The adjudicator stated that “this course of conduct reasonably could have been known by [the supervisor] to be unwelcome given his repeated requests in front of others and rolling his eyes when she tried to explain the MRI and how it hurt her.”

The employee had also alleged that the employer had failed to properly investigate the supervisor’s conduct. Although that allegation was dismissed on the facts, the adjudicator addressed the law relating to the proper conduct of such investigations:

The test for assessing employer investigations is set out in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (CanLII), and includes a consideration of the employer’s awareness of issues of discrimination/harassment including having a policy, complaint mechanism and training; what the employer does post-complaint, considering: seriousness, promptness, taking care of its employee, investigation and action; and the employer’s resolution of the complaint (including providing the complainant with a healthy work environment) and communication.

The adjudicator stated that the Tribunal in Laskowska further stated:

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

The adjudicator concluded that the supervisor’s public requests for medical documentation constituted harassment under the Code.

In considering the quantum of damages, the adjudicator stated:

The Tribunal’s case law recognizes that damages awards should not be so low as to “trivialize the social importance of the Code by effectively creating a “license fee” to discriminate.” See Sanford v. Koop, 2005 HRTO 28 (CanLII). The decision lists the following factors to consider in awarding damages:

• humiliation experienced;
• hurt feelings experienced;
• loss of self respect;
• loss of dignity;
• loss of self esteem;
• loss of confidence;
• experience of victimization;
• vulnerability;
• seriousness, frequency and duration of the offensive treatment.

The supervisor had not disclosed any of the employee’s personal medical information, “but he did ask in front of others more than once for medical documentation. He also made reference to an MRI in front of others, and reacted poorly when the applicant tried to explain to him how it made her arm feel after the MRI. In addition, the applicant was in a somewhat vulnerable position as it was her direct supervisor who engaged in the harassment.”

After considering several cases, the adjudicator awarded $1500. for injury to dignity, feelings and self-respect.

The issue of damages is considered in section 14:700 of the Illness and Absenteeism manual, commencing at page 693 of the manual.

3. The mere fact that an employer advises an employee that it does not believe that the employee’s disability prevents her from working does not constitute an act of discrimination within the meaning of human rights legislation.

In Humber River Regional Hospital, 2013 HRTO 2063 (CanLII) (Price), the arbitrator stated:

[I cannot] accept the applicant’s submission that the mere fact that the respondent conveyed to the applicant that it doubted that his disability prevented him from working was an act of discrimination within the meaning of the Code. If the applicant were correct in this submission, it seems to me every decision to deny benefits could be viewed as an act of discrimination, because every decision to deny benefits presumably involves the respondent expressing to the applicant that it does not agree that he or she is disabled to the extent claimed by the applicant. More importantly, even if I were persuaded that the respondent treated the applicant in a disadvantageous manner when it told him it was denying his claim for sick benefits, there are no facts alleged that the applicant’s disadvantageous treatment was “because of” the applicant’s disability.

The onus that an employee bears in establishing that she has been subject to direct or indirect discrimination is considered in section 14:330 of the Illness and Absenteeism manual.

4. A Branch Manager who was disabled when the business was sold to another employer was unsuccessful in a complaint alleging discrimination against both his former employer and the purchaser.

In Mueller Canada and another, 2014 BCHRT 27 (CanLII) (Blasina), the terms of sale stipulated that employees who were on disability leave at the time of closing were to be offered a position with the purchaser conditional on their being able to return to their regular position, or to an appropriate available position, in the event of any continuing limitation or restriction.

Shortly after the sale, the purchaser offered the employee employment effective the date of his ability to return to his former position, or to a new or modified position in the event that he continued to experience any restrictions or limitations. The employee accepted the offer and conditions, and approximately seven months later, advised the purchaser that he wished to return to his former position as the business’s Nanaimo Branch Manager, working four hours a day, five days a week, and sharing the Branch Manager’s responsibilities with the Acting Branch Manager. The purchaser advised that the position could not be shared or executed part-time within the bounds of undue hardship for the employer.

The employee subsequently filed a lawsuit and a human rights complaint against both the vendor and the purchaser.

The human rights complaint was dismissed, with the adjudicator stating that the findings of fact were limited to the human rights complaint and were not determinative in the wrongful dismissal suit. In coming to his decision, the adjudicator found or stated that:

• Given that the employee was offered continuity of his terms of employment, the purchaser’s obligations to the employee with respect to any duty to accommodate were the same as the vendor’s were or would have been had it not sold the business to the purchaser.

   

• The purchaser’s refusal to employ the employee resulted in an adverse impact on the employee. His disability was a factor in the purchaser’s refusal to employ him. Consequently, a prima facie case had been made out against the purchaser.

   

• The adjudicator concluded that it would amount to an undue hardship for the purchaser to have to either return the employee to a part-time Branch Manager position, or to provide him with other part-time work in the Nanaimo office. On the issue of whether the employee should have been offered part-time work at another location, the adjudicator commented that if the employee was amenable to working for the purchaser at some other location, it would have been incumbent on him to introduce that topic into the accommodation discussion. In the circumstances, the purchaser could not reasonably have known that the employee may have considered a part-time position elsewhere.

   

• There was no link between the employee’s disability and his displacement from the Nanaimo branch as the vendor’s employee. Although the employee accepted the purchaser’s conditional offer of employment, he remained an employee of the vendor until such time as he became employed by the purchaser, or until he quit (retired) or was terminated.

   

• The vendor did not have a duty to accommodate the employee, for “… before the duty to accommodate is engaged, [the employee] must establish a prima facie case; i.e. that his disability was a factor in the vendor’s adverse treatment of him.” The evidence did not establish that the employee had communicated that he wished to return to work for the vendor, and consequently, the vendor had not engaged in any adverse treatment of the employee.

   

• The employee’s disability was not a factor in his not being returned to active employment by the vendor. He did not establish a prima facie case against the vendor.

In the course of his analysis, the adjudicator stated:

The size of the enterprise can determine the accommodation options available, with smaller enterprises possessing fewer options: Williams v. Sechelt School Bus Service, 2010 BCHRT 251, para. 106. In Beznochuk [Beznochuk v. Spruceland Terminals Ltd., [1999] B.C.H.R.T.D. No. 45], the Tribunal noted:

Balanced against these suggestions of [the employee] is the nature of [the employer’s] business. It is a small operation. It appears to have very little turnover of employees and few vacancies. It has a very narrow range of available positions. It provides full-time employment to the persons it requires to carry out its operation. It is not in a position to transfer employees around its operation, or to create jobs that do not require physical labour. [The employer] says that it cannot modify any position to an extent that [the employee] could perform the work without endangering himself.

The foregoing aspects of the duty to accommodate are considered in the Illness and Absenteeism manual in sections 14:410 and 14:420 (the nature of the duty to accommodate), section 14:440 (the concept of undue hardship), section 14:503 (factors considered in determining undue hardship) and section 14:618 (accommodation in other branches of the employer’s operation).

5. A complaint alleging that a vocational college failed to accommodate a worker undergoing a vocational re-training program was dismissed on the basis that the complainant had failed to establish a causal link between her disability(s) and her failure to successfully complete the course.

In MTI College, 2014 BCHRT 9 (CanLII) (Trerise), the Complainant had allegedly developed chronic regional pain syndrome as a consequence of a workplace accident. WorkSafe BC sponsored the complainant in a vocational rehabilitation program that would train her to be a Medical Office Assistant. After having failed to complete the program, the complainant filed a human rights complaint against the College, in which she alleged that the College failed to accommodate her disability by requiring her to perform “two-armed” CPR and by failing to provide her with a voice recognition program, and that both were instrumental in her failure to complete the course.

In dismissing the Complaint, the adjudicator concluded that the Complainant had failed to establish a nexus between her physical disability, a possible mental disability and her failure to successfully complete the course.

The issue of causation in the context of improper conduct allegedly attributable to a disability is considered in sections 14:330 and 15:301 of the Illness and Absenteeism manual, commencing at pages 557 and 724 respectively.