llness and Absenteeism.com - Summer 2019 Newsletter

In this edition you will find:

A. Featured Case: A non-unionized financial analyst was found to have been terminated, in part, because of service-related problems associated with his mental health. The adjudicator found that absent such concerns, the employee would nevertheless have been terminated solely on the basis that he was grossly overpaid. Damages were awarded for injury to the employee’s dignity, feelings and self-respect arising from the discriminatory treatment, but no award was made for the impact of the termination (as, for example, with respect to lost wages) because it was clear that the termination would nevertheless have occurred in the absence of any discriminatory factors. [Click here]

B. Recent Decisions of General Interest

1. An employer violated the Code when it required employees to use sick leave benefits while working on modified duties. The employer’s refusal to count hours worked while on modified duties for the purpose of further accruing sick leave benefits was similarly found to have violated the Code. [Click here]

2. An absent employee who avoided his employer’s continuing efforts to communicate with him was found to have breached his employment obligations. His unsubstantiated allegation that the employer was lying served to defeat his plea for substitution of a lesser penalty. [Click here]

3. An employee who was terminated following her continued denial that she had an alcohol-related problem was found to have prevented her employer from being able to respond to her medical condition. The issue for adjudication was not accommodation but rather whether just cause existed. It did. The employee’s failure to present any evidence of having undertaken rehabilitative treatment resulted in her termination being upheld. [Click here]

4. A temporal connection between an employer having raised its attendance-related concerns and the employee’s eventual termination was not sufficient to establish that the employer had discriminated against the employee. [Click here]

5. An employee who was subjected to a poisonous work environment was entitled to leave her employment and ultimately recover substantial damages to compensate for her treatment and loss of position. [Click here]

A. Featured Case: In Jones Lang LaSalle Real Estate Services, Inc., 2017 HRTO 331 (CanLII) (Scott), a non-unionized financial analyst was found to have been terminated, in part, because of service-related problems associated with his mental health. The adjudicator found that absent such concerns, the employee would nevertheless have been terminated solely on the basis that he was grossly overpaid. Damages were awarded for injury to the employee’s dignity, feelings and self-respect arising from the discriminatory treatment, but no award was made for the impact of the termination (as, for example, with respect to lost wages) because it was clear that the termination would nevertheless have occurred in the absence of any discriminatory factors.

Within three years of his hire, the employee’s initial salary had increased from $50,000 to $100,000 per annum. After the employee had been employed for six years, new management made the decision to terminate his employment on the grounds that he was over-paid as a financial analyst and that he was not servicing all of the brokers equally. It contended that he lacked initiative and had not been working collaboratively with fellow employees.

The employer hired a new financial analyst, at a salary of $52,000 per annum, prior to effecting the termination.

The day following his termination, the employee advised the employer, in writing, “that he had mental health problems in the past and that it was possible his depression and anxiety affected his performance in the last year.”

The adjudicator found that when the employee “was terminated, in part, because of his lack of initiative, avoidance of work, interactions with others, and his failure to work collaboratively, he was terminated for behaviour that was linked with his disability.” The adjudicator also found that “had the discrimination not occurred, the [employee’s] employment would have been terminated for reasons related to his compensation”.

As a result, the [employee] is not entitled to be compensated for the impact of the termination per se because it would have happened for non-discriminatory reasons. Rather, the [employee] is entitled to be compensated for the fact that in making the decision to terminate, the [employer] considered his service-related problems that related to his mental health. In other words, the [employee] is entitled to be compensated for the discrimination that he experienced.

The adjudicator stated that even in the absence of any discrimination, it was more likely than not that the employee’s employment would have been terminated “for the single reason that he was overpaid in his position. The fact that the employee’s replacement was hired days before his termination and paid 52 percent of his salary supports this finding.”

Following his termination, the employee received a severance payment of $25,000, representing three months base salary pursuant to his employment contract. He also received one month of disability benefits in respect of depression and anxiety arising from his termination. His civil claim for lost disability benefits against the employer’s benefits insurer was later settled for a payment of $150,000.

The adjudicator stated that the employee was not entitled to recover lost wages for his termination because he had received the severance payment to which he was entitled under his employment contract. There was no need to decide whether the $150,000 settlement payment from the insurer should be deducted from a lost wages award for there were no lost wages from which to deduct that settlement.

The adjudicator awarded $10,000 for compensation for injury to dignity, feelings and self-respect. She cited Best Buy Canada, 2010 HRTO 1880 (CanLII) in support of the criteria to be considered when making such awards. In determining quantum, the adjudicator considered that for a period following termination, the employee had been suicidal, had experienced intense depression and anxiety, had problems sleeping and had suffered a loss of appetite. The adjudicator also commented that the employee had a long history of depression and anxiety going back thirty years, and that “while the termination no doubt exacerbated the [employee’s] mental health issues for a period of several months, it did not create them.”

Issues related to causation are considered in section 14:320 of the Illness and Absenteeism manual and its’ Supplement.

B. Recent Decisions of General Interest

In Health Sciences North, 2017 CanLII 10853 (ON LA) (Trachuk), the union alleged that the employer’s accommodation of disabled nurses by returning them to work on modified duties constituted a violation of the Human Rights Code, because it treated the nurses being accommodated differently with respect to the reinstatement of sick pay benefits than other nurses who returned to full-time duties. Central to the grievance was the operation of the 1992 Hospitals of Ontario Disability Income Plan (HOODIP). The arbitrator agreed:

Whether or not a disabled employee returns to work on modified duties in an attempt at an early return to work or requires permanent accommodation is irrelevant to the underlying fact that the employee is working. An employee who is working is not totally disabled even if HOODIP says they are. They are “actively at work” even if HOODIP says they are not. An employee who comes back from sick leave and does not require modified duties re-establishes their entitlement to short term sick leave benefits in three weeks. An employee who returns on modified duties does not. That is prima facie discrimination. It is discriminatory because that person is working but is being treated differently because their disability requires modifications for them to work. It does not matter if the modifications are temporary, or are part of the GRTW [Graduated Return to Work], or if the Hospital is going beyond what the Code requires and bringing back employees as “extras”. The Hospital is requiring employees to come to work, to contribute, to follow its rules and directions. Employees on modified duties are entitled to be treated like other employees for the purposes of sick benefit requalification and not having to use their sick benefits while working.

The union had made out a prima facie case. The employer did not advance a defence of undue hardship. Consequently, the adjudicator found that the employer had violated the Code and the collective agreement by requiring the accommodated employees to use their short term sick leave benefits when they were at work on modified duties and by failing to count hours worked on modified duties toward the re-establishment of the employees’ entitlement to short term sick leave benefits.

The employer was ordered to compensate the employees for any losses they suffered.

The issue of modified work is considered in section 17:204 of the Illness and Absenteeism manual and its’ Supplement

In Toronto (City), 2017 CanLII 15611 (ON LA) (Randall), the employee was terminated for having been absent without leave. His evidence, in which he testified that his leave had been extended over the telephone, was found to lack credibility. On that issue, arbitrator Randall stated:

… I find the [employee and his daughter] not to be credible witnesses for a host of reasons that I don’t intend to set out. Without dilating, their evidence was marked by a host of contradictions and much prevarication. It suffices to say their accounts were both internally inconsistent, inconsistent with respect to one another, and frequently made little sense, when measured against any standard of a credible account. The strange lines of communication, which insulated the [employee] from ever having to call the employer and face questions about his absence, are either not credible or designed to avoid same. There was no compelling reason given for why he didn’t call the employer in a timely fashion. While I’m satisfied that he was ill, and required bed rest, that is not sufficient to negate his obligation to call the employer.

The termination was upheld. The employee’s unsubstantiated allegations that the manager was lying were unfounded and served to “sour” the arbitrator’s view with respect to the substitution of a lesser penalty.

An employee’s obligations to communicate with her employer are considered in section 14:432 of the Illness and Absenteeism manual and its’ Supplement.

In Ontario (Liquor Control Board), 2017 CanLII 25442 (ON GSB) (Watters), the employee had a long history of alcohol abuse. The employer attempted to extend assistance to the employee but she rebuffed its efforts. The employer finally terminated the employee for reasons related to her excessive alcohol consumption.

At a meeting that occurred approximately one month prior to the employee’s termination, the employee finally acknowledged that she might have started to have a problem with alcohol. Following that meeting, the employer kept imploring the employee to undergo treatment but she failed to engage in the process. A further meeting was scheduled with the employee but she failed to attend. She was then terminated for cause.

The union suggested that the employer should have made a greater effort to confront the employee’s issues, and that it should have gone beyond her denial that she needed help. The arbitrator rejected that contention:

I reject the suggestion that the employer ignored the issue and failed to make sufficient inquiry about what was causing the employee’s work related problems. Rather, I am satisfied that it confronted the [employee] on numerous occasions over a lengthy period about her suspected alcohol abuse. For reasons which are not entirely clear, the [employee] consistently denied that she had a problem. These denials effectively limited the employer’s ability to respond to the situation …

The employer had recommended that the employee enter into a nearby residential treatment program. The employee declined to participate.

The arbitrator accepted the employer’s contention that the issue for adjudication was not whether the employer had accommodated the employee to the point of undue hardship but rather whether there was just cause for termination, and whether the employee’s alcohol abuse and other factors warranted the substitution of some lesser form of discipline:

Given all the circumstances of this case, including the lack of any medical evidence; the [employee’s] repeated denials that she had an alcohol abuse problem; her failure to respond to the [employer’s] offers of assistance with respect to domestic abuse; and all of the employer’s efforts to address the [employee’s] issues, I accept the employer’s submission that the threshold issue here is not whether it accommodated the [employee] to the point of undue hardship. Rather, it is whether there was just cause for termination and whether the [employee’s] use of alcohol, her domestic abuse and other mitigating factors warrant the substitution of some lesser penalty.

The employee did not receive any treatment for alcohol abuse following her termination. No medical reports were filed at the hearing regarding her condition in the post-discharge period. She elected not to participate in an Alcoholics Anonymous program but instead chose to participate in a weekly program offered by her church. “While [such involvement] may have provided support to the [employee, the arbitrator was not persuaded that it] supplanted the need to get professional help for her problems …”

The employee had not met the onus in a case such as this:

An onus exists for the [employee] to show that she has rehabilitated herself and has a good prognosis if returned to the workplace. This onus has not been satisfied here. There is no firm evidence that the [employee’s] alcohol abuse has ended or that her psychological issues have been resolved, or at least brought to a manageable level. In the absence of such evidence, I am unable to find that a viable employer-employee relationship can be re-established.

The arbitrator also concluded that this was not an appropriate case for a last chance agreement:

… It would not be appropriate to provide her with a “last chance” through the vehicle of a conditional reinstatement … The [employee], over the course of a considerable period, has been accorded numerous opportunities to confront and address her issues. It is a fair assessment to say that little progress was achieved, particularly with respect to the [employee’s] use of alcohol. [I] might have been more inclined to look favourably on this option if there had been a record of treatment subsequent to the [employee’s] termination and evidence of a positive prognosis as a consequence of same. In the absence of this type of information, there is no solid assurance that the [employee’s] behaviour will not continue as before. In considering the union’s remedial request, I have also taken into account the length of the [employee’s] seniority, the economic hardship arising from the termination, and the [employee’s] inability to date to find other employment. These factors are an insufficient foundation for the exercise of discretion in the [employee’s] favour.

The termination was upheld.

The arbitral approach to addictions and mental illness is considered in Chapter 15 of the Illness and Absenteeism manual and its’ Supplement.

In MHPM Project Leaders, 2017 HRTO 246 (CanLII) (Scott), the employee alleged that disability-related absences in 2013 were a factor in the employer’s decision to terminate her employment in February, 2014. She had been working for the employer on infrastructure projects that it was managing for the federal government.

The adjudicator concluded that the temporal connection between the employer having raised its attendance related concerns in December of 2013 and the actual termination of employment in February of 2014 was sufficient to require an explanation from the employer regarding its decision to terminate. She commented however that:

The temporal connection alone does not establish discrimination. In order to establish discrimination, the [employee] must prove that her disability-related absences in 2013 were a factor in the decision to terminate her employment in February, 2014. The [employee] does not have to establish that the disability-related absences were the only reason for her termination.

The employee’s complaint was dismissed. In doing so, the adjudicator stated:

The [employee] was terminated because Public Works made a decision to end her position on the East Block. The [employer] did not make this decision. Following the decision by Public Works, the [employer] terminated the [employee’s] position because there was no other work available at the intermediate project manager level in the Eastern Region that she was qualified to perform. The [employee’s] employment was terminated for shortage of work. This is the reason given on the Record of Employment and it is consistent with the evidence before me.

… There is no question that the [employer] was concerned about the [employee’s] attendance in 2013. However, that alone is not discriminatory. The evidence does not establish that the [employee’s] absenteeism played a role in the decision to terminate her employment.

The issue of causation is considered in s. 14:320 of the Illness and Absenteeism manual and its’ Supplement..

5. An employee who was subjected to a poisonous work environment was entitled to leave her employment and ultimately recover substantial damages to compensate for her treatment and loss of position.

In 2249191 o/a Innovative Content Solutions Inc., 2017 HRTO 208 (CanLII) (Cook), the adjudicator concluded that the employee had been discriminated against on the basis of creed and sexual harassment. The employee testified that he finally quit his employment after the situation at work had become intolerable. The adjudicator concluded that “as a result of the combined effect of the continuing harassment and the failure to accommodate the [employee’s] religious based needs, the [employee’s] decision to leave the employment [was justified] because it was not tolerable and was not likely to improve.”

The employee was awarded $12,500 as compensation for injury to his dignity, feelings and self-respect attributable to the harassment he experienced, $7,500 for injury to his dignity, feelings and self-respect for the employer’s failure to accommodate his creed-based needs, and $15,750 in lost wages incurred after he quit his employment.

The adjudicator’s decision considered both the issue of a “poisoned work environment” and issues of liability arising from the acts of employees or other related entities.

In terms of a poisoned work environment, the adjudicator stated:

It is well established that if a person is subject to discrimination and harassment at work, the work environment can become “poisoned”. If the person quits the employment, the person may be entitled to compensation for the resulting loss of earnings on the grounds that it is reasonable for a person to quit an employment that has become so poisoned that continuing in the employment is not a reasonable option.

However, a poisoned work environment does not necessarily result when a person is exposed to discrimination and/or harassment at work. In General Motors of Canada Limited, 2013 ONCA 502 (CanLII), the Ontario Court of Appeal stated …

The plaintiff bears the onus of establishing a claim of a poisoned workplace. As the trial judge recognized, the test is an objective one. A plaintiff’s subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment has been created …

Moreover, except for particularly egregious stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.

… If the work environment features serious wrongful behaviour sufficient to create a poisoned environment, the person affected may reasonably leave the work environment because it is not tolerable and is unlikely to improve.

The term “poisoned work environment” is usually applied in circumstances where the work environment has become toxic because of pervasive discrimination or harassment, most commonly involving grounds relating to race or sex.

If supervisors or managers are directly or implicitly involved in the discrimination and harassment, an employee may justifiably conclude that the toxic or poisoned work environment will not change. If there is objective evidence of serious wrongful behaviour, a finding that a poisoned work environment existed that justified the [employee] quitting the employment may be made. In that event, the employee would be entitled to wage loss resulting from the quitting of the employment as well as general damages …

On the matter of liability, the adjudicator stated that an employer can be liable for harassing conduct by another “when the corporate employer is aware that harassment is happening and condones or refuses to do something about it … Another circumstance where the corporate employer may have liability is when the person who is responsible for the harassment or discrimination is a person who is part of the “directing mind” of the corporation.

Damages arising from a poisoned work environment are considered in section 14:700 of the Illness and Absenteeism manual and its’ Supplement.

llness and Absenteeism.com - Summer 2019 Newsletter

Illness & Absenteeism In The Workplace