llness and Absenteeism.com - December 2017 Newsletter

In this edition you will find:

A. Featured Case: Workplace changes that impact on a disabled employee’s permanent accommodation may necessitate further consideration, and possibly further accommodation. The employer, the union and the accommodated employee should all be involved in considering the need for an altered accommodation. [Click here]

B. Recent Decisions of General Interest

1. An employee who is seeking accommodation must establish, through medical evidence, that she has a disability that merits accommodation. The employer will, for its part, be entitled to challenge the basis for the employee’s assertions by relying upon, among other matters, the medical documentation contained in the employee’s files. [Click here]

2. No claim for accommodation can be made in respect of a period where the employee has been found to have been totally disabled. [Click here]

3. An in-vehicle surveillance system that was designed for safety and training purposes was found to have served several legitimate purposes that outweighed its intrusion on employee privacy. [Click here]

4. In considering whether an employer had exhausted all reasonable efforts to accommodate an epileptic employee, the adjudicator approached the matter by dividing the facts into two distinct time periods, with the first being the period up to the employee’s last workplace seizure, after which the employer did not allow the employee to return to her accommodated position as a customer information clerk, and the period thereafter where the employer looked for another accommodation and concluded that it could not offer reasonable accommodation. [Click here]

5. A settlement agreement resolving a human rights dispute does not necessarily deprive a human rights tribunal of jurisdiction to hear the dispute. Factors that might be considered in allowing the complaint to proceed could include the language of the release; unconscionability, “which exists where there is an inequality of bargaining power and a substantially unfair settlement”; undue influence; whether the party received independent legal advice; conditions of duress, which may be related to the timing of the agreement, financial need or other circumstances; and whether the party received little or no consideration for the release. The Tribunal may also consider “the seriousness of the allegations in a complaint and what is at stake for the complainant. [Click here]

A. Featured Case: Workplace changes that impact on a disabled employee’s permanent accommodation may necessitate further consideration, and possibly further accommodation. The employer, the union and the accommodated employee should all be involved in considering the need for an altered accommodation.”

In Teck Highland Valley Copper Partnership, 2017 BCHRT 242 (CanLII) (McCreary), the employee alleged that he had been discriminated against on the basis of physical disability.

Disabled employees were to be accommodated pursuant, in part, to a Letter of Understanding that provided for a Disability Management Committee to recommend job placements for temporarily disabled employees and permanent accommodations for employees with permanent disabilities.

The employee was a Journeyman Millwright who suffered a work-related injury that left him with permanent limitations and restrictions, such that he was unable to perform the full unrestricted duties of a Journeyman Millwright. A Letter of Understanding created four positions in the employer’s modified work program in the Tool Crib in Mill Maintenance. These positions were to be filled with employees having a mechanical background with permanent disabilities that prevented them from performing regular duties. Employees in these positions performed the work of the lower classified Tool Crib Attendant but were paid as a Journeyman in the accommodated position.

The employer and the union agreed that the employee would be permanently accommodated with a position in the Tool Crib in Mill Maintenance and that he would receive the same amount of pay that he had been receiving as a Journeyman Millwright.

The grievance raised two concerns regarding that accommodation. They dealt with assignment of work on statutory holidays and the employee’s removal from membership on the Emergency Response Team with its corresponding loss of a wage premium.

Issue Regarding Lost Statutory Holiday Pay:

The employee alleged that for the first four years in his accommodated position, he reportedly worked every statutory holiday in his position as a tool crib attendant. By way of explanation, typically a tool crib is a separate “tool room” with limited access that is administered by one or more persons. On off-shifts, access to the tool crib may be provided by select foreman who have been provided with keys for that purpose.

After approximately four years, the employer decided to close the tool crib on statutory holidays. It created a skeleton crew of millwrights and welders who were assigned to be present to deal with mechanical breakdowns. The employee contended that he could have performed some of the duties that were performed on statutory holidays by millwrights assigned to that crew.

Employees who worked statutory holidays were entitled to premium pay that amounted to 12 hours at double time, plus 8 hours for the statutory holiday, totalling 32 hours of straight time pay. Because the employee was no longer assigned to work on statutory holidays, his entitlement was limited to 12 hours “stay home pay.” As a remedy, the employee sought to be added back to the regular statutory holiday rotation list based on the tasks involved and his limitations.

The adjudicator summarized the resultant situation in the following terms.

It is clear that [the employee’s] disability has been accommodated by [the employer] and, in doing so, it assigned him to a permanent accommodation negotiated by him, [the employer], and the Union. However, the circumstances of his work changed when [the employer] decided to have limited workers on statutory holidays and the accommodation job in the Tool Crib was not called to do work on statutory holidays and receive the corresponding premium …

The difference between working a statutory holiday and staying home is 20 hours pay.

The adjudicator stated that the question to be addressed was whether the employee’s application had a reasonable prospect of success. A part of that determination involved the employee being able to prove that there was a “nexus between his disability and the adverse impact of his no longer being able to work on statutory holidays.” Was his loss of statutory holiday pay due to his disability, or was it due to him not doing the work because no employees were scheduled to do the work in the Tool Crib on statutory holidays? The other issue was that “if a nexus was established, had [the employer] shown that it has properly accommodated [the employee] and thus raised a valid defence so that there is still no reasonable prospect that the complaint will succeed.”

The adjudicator commented that “the question of whether an employer has fulfilled its duty to accommodate “must be approached on a global basis, considering the entire history of the matter.” She stated that a compartmentalized approach which considers certain events in isolation from the course of conduct as a whole is to be avoided:

In assessing the history of the matter, and noting the impact on the employee, I am not convinced that [this aspect of the complaint] has no reasonable prospect of success; particularly the issue of whether his accommodation was worthy of review once there was a change in the organization of work that had an impact on his ability to partake of work on statutory holidays. While the union and the employee was involved in the original determinations about his accommodation, they were not involved again once the workplace changes were made, notwithstanding the impact on [the employee]. It may be that his accommodation continues without change but I cannot say that he has no reasonable prospect of success in showing that such a review should have been undertaken.

The application to dismiss that aspect of the employee’s complaint was denied.

Entitlement to Premium Pay as a Member of the Employer’s Emergency Response Team (ERT)

The collective agreement provided that members of its emergency response team were to receive a 50 cent per hour premium. After the employee’s injury he was physically incapable of performing the necessary tasks of an ERT member. That resulted in the ERT premium being discontinued. The issue again for the adjudicator was to determine whether there was a nexus between the employee’s disability and the adverse impact. If a nexus was established, then the onus fell to the employer to establish that being able to completely perform the tasks of a member of the ERT was a bona fide occupational qualification such that there was therefore no discrimination.

Based on the evidence, the adjudicator concluded that the employer would be reasonably certain to be able to prove that physical fitness and the ability to do the duties of members of the ERT was a bona fide occupational qualification. That being the case, there was no reasonable prospect that this aspect of the complaint would succeed.

This case also reviewed authorities that had established that an employer is not obligated to top-up an employee’s wages for performing work that he is not doing or capable of doing.

Issues related to ongoing nature of the duty to accommodate are considered in s. 14:460 of the Illness and Absenteeism manual and its supplement.

B. Recent Decisions of General Interest

1. An employee who is seeking accommodation must establish, through medical evidence, that the employee has a disability and is therefore entitled to accommodation. The employer will, for its part, be entitled to challenge the basis for the employee’s assertions by relying upon, among other matters, the medical documentation contained in the employee’s files.

In Peel District School Board, 2017 CanLII 96315 (ON LA) (Nairn), the employee, who was seeking accommodation, objected to production of his medical records. In granting the employer’s request for production, the arbitrator, after first citing with approval Dufferin Concrete [2015] O.L.A.A. No. 417 (Luborsky), went on to state:

The onus is on the [union] to establish through evidence that the [employee] has a disability and is thereby entitled to an accommodation. As well it must establish through evidence the nature of any restrictions and limitations that the disability imposes. Absent medical evidence, the [union] may be left in a position of being unable to prove the case it asserts. The employer is also entitled to challenge the basis for those assertions, including through evidence contained in the medical file. As noted earlier, in order to ensure both a fair and efficient hearing process, the general test for production is whether the material sought to be produced is arguably relevant to the issues in dispute. In a case involving the accommodation of a medical disability, the fact of the ongoing disability and the nature of any associated restrictions and limitations are at the very core of the dispute. That dispute is also ongoing in time, as the [union] will be asking both that the [employee] be accommodated on an ongoing basis and that he be compensated for any lost wages arising as a result of being absent from work because of any failure to accommodate.

The arbitrator concluded that:

The pre-hearing production of material relating only to those medical issues which the [employee’s] request for accommodation, supported by his submission of medical notes, [put] in issue in this proceeding, does not represent an unreasonable intrusion into the [employee’s] private medical issues. Nor is it unduly prejudicial to the [employee]. That is the appropriate scope of the material to be produced.

Decisions regarding the production of medical records are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.

2. No claim for accommodation can be made in respect of a period where the employee has been found to have been totally disabled.

In Ontario (Health and Long-Term Care), 2017 CanLII 65624 (ON GSB) (Herlich), the adjudicator considered two factual circumstances. In the first, as a result of an existing condition, the employee had an ongoing need for ergonomic accommodation. To the extent that she required an ergonomic workstation in workplaces other than her regular workplace, the employer had allegedly failed to provide it.

Secondly, as a result of exposure to carpet-cleaning chemicals that had been unsafely employed in her workplace, the employee developed Reactive Airway Dysfunction Syndrome (RADS). As a result, she was to avoid direct exposure to chemicals or other irritants, including those commonly associated with construction and renovation.

The adjudicator stated that “no claim for accommodation can be properly advanced in respect of a period of total disability.” The alleged claim for accommodation “is now precluded by virtue of the now indisputable status of the [employee] as totally disabled during the period of total disability.”

The adjudicator found that the employer’s efforts to accommodate the employee were clearly inadequate:

Employer counsel frequently sounded a particular theme. Perfection is a lofty standard and one that should not be absolutely required in cases of accommodation. So long as an employer makes reasonable efforts to achieve a proper accommodation it should not be penalized if it falls short of perfection. While this is undoubtedly an abbreviated accounting of this employer submission, I am satisfied that it has no application to the relevant accommodation.

… as far as the ergonomic accommodation during the first time period, the employer came nowhere close to perfection. Its efforts were a series of misteps and half-steps

Decisions regarding factors to be considered during an employer’s search for accommodation are considered in section 14:600 of the Illness and Absenteeism manual and its supplement.

3. An in-vehicle surveillance system that was designed for safety and training purposes was found to have served several legitimate purposes that outweighed its intrusion on employee privacy.

In Lafarge Canada Inc., 2018 CanLII 69607 (BC LA) (Saunders), the union challenged the installation of an in-cab camera system in its cement trucks. The system consisted of one front camera, one rear camera, two side cameras and one in-cab camera. The system worked in conjunction with a GPS unit installed in the cab of each of its cement trucks. Event recordings were transferred throughout the day to the system’s proprietary data centre.

The cameras recorded continuously. The recorded video could be reviewed on request and was to be reviewed in the event of a triggering event that was identified by gyroscopes housed within the cameras. There were three types of triggering events: 1) speeding over a pre-set limit, 2) shock manoeuvres such as hard braking, bumps on the road, coasting, panic stops, sharp turns and swerves or collisions; and 3) manual activation. The employer had not activated the voice-recording feature on the system.

The system was used to track fleet and driver performance. Data was overwritten after 50 hours of recording.

The arbitrator stated that the issue for determination was whether the introduction of the in-cab camera system was a reasonable exercise of the employer’s management rights. He stated that the reasonableness of overt work place surveillance, having regard to the general statutory framework, common law principles and arbitral jurisprudence, had recently been set out in Kadant 2015 [Kadant Carmanah Design, [2015] B.C.C.A.A.A. No. 111 (Lanyon)] and had later been adopted in Armtec Limited Partnership, [2016] B.C.C.A.A.A. No. 90; 128 C.L.A.S. 157 (Hall).

Arbitrator Saunders considered the factors set forth in Kadant to assess the reasonableness of the in-cab camera system:

Factor 1: Was the employer’s concern for safety and/or security bona fide (recognizing that there will be a subjective element of whether a concern exists; and an objective element which relates to the circumstances of the workplace, but which does not require evidence of a historical problem of security or safety).

There was no contention that the employer installed the system other than for bona fide safety purposes.

Factor 2: Was there a direct link or nexus between the installation of the in-cab camera system and the issue of safety (i.e. whether or not there is evidence that the installation was for reasons other than safety). Security was not at issue in the present case.

The evidence established that the in-cab system was connected to advancing matters of safety and driver training.

Factor 3: Was the surveillance implemented and utilized in a reasonable manner (e.g. the number of cameras, place of installation, use of footage, etc.);

The arbitrator concluded that the surveillance was implemented and utilized in a reasonable manner.

Factor 4: Were there reasonable alternatives to use of the in-cab camera system? Did the system constitute the least intrusive measure of meeting the employer’s goals?

The arbitrator answered this question in the negative, for exterior cameras, spot checks, law enforcement and training did not provide an alternative means to achieve the same training and accident investigation objectives.

The arbitrator dismissed the union’s grievance on the basis that the in-cab camera system served legitimate purposes that outweighed its intrusion on employee privacy. There were “no less intrusive alternative means to achieve the same objective as the in-cab camera [system]. Accordingly, the employer [had] acted reasonably.”

Cases involving the admissibility of surveillance evidence are considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.

4. In considering whether an employer had exhausted all reasonable efforts to accommodate an epileptic employee, the adjudicator approached the matter by dividing the facts into two distinct time periods, with the first being the period up to the employee’s last workplace seizure, after which the employer did not allow the employee to return to her accommodated position as a customer information clerk, and the period thereafter, where the employer looked for another accommodation and concluded that it could not offer reasonable accommodation.”

In Coast Mountain Bus Company, 2018 BCHRT 20 (CanLII) (Rilkoff), the employee was discovered to be suffering from epilepsy. It affected her ability to perform certain jobs. It also affected her attendance. It was the employer’s position that it had accommodated the employee up to the point of undue hardship. Her employment was terminated because she was unable, with or without accommodation, to perform any available jobs for which she was qualified.

The employer sought to have the employee’s resultant complaint dismissed pursuant to s. 27 (1)(c) of the British Columbia Code on the basis that the complaint had no reasonable prospect to succeed at a hearing on its merits.

The employee had been employed as a transit driver. On July 28, 2010, she suffered a seizure while driving one of the employer’s buses. She was hospitalized and was then off on medical leave. She returned to work on September 10, 2010, at which time she was accommodated on a temporary basis as a Modified Service Person cleaning buses. The accommodation was in a related bargaining unit and was essentially that of a cleaner. The Modified Service Person position was, by agreement, one of several positions that were designated as Temporary Accommodation positions that were to be available for a maximum of six months.

Approximately three months later, the employer was advised by the employee’s physician that the employee’s epileptic condition was permanent and that she was under the care of a neurologist.

In April of 2011, the employee was cleared to return to full time employment and her full time hours were restored. She was returned to the accommodated position of Modified Service Person.

By September of 2011, the employee’s Modified Service Person Assignment, which had been extended, was now ending. While the employee was capable of performing the duties of an Interior Cleaner, there were other employees requiring accommodation ahead of her who would be considered first if a vacancy became available.

The employer considered the employee for a customer information clerk position but she was unsuccessful in passing the tests that were required to qualify for that position. The employee was receiving long term disability benefits up until July of 2012, at which time the qualifying factor for benefit entitlement became being disabled from any occupation rather than just her own occupation.

The employee was placed in a temporary Building Service Worker position in November 2012. One month later, she suffered another seizure and was again hospitalized. She was off work for approximately two to three months. When the employee returned to work on February 18, 2013 pursuant to an Accommodation Agreement, she was placed in a casual Customer Information Clerk position working on a permanent on-call basis.

The employer required that all of its Customer Service Clerk leaders with Level 1 First Aid upgrade their seizure knowledge. A guide setting out what to do in the event that the employee experienced another seizure was developed with input from the employee and the employer’s Occupational Health Nurse. The guide was then provided to the employee’s Team Leads.

In the latter three months of 2013, the employee suffered three seizures at work and was transported to hospital on each occasion. With the exception of three shifts worked in January, 2014, the employee was off on medical leave because of her medical condition from December 19, 2013 to June 6, 2014. She then commenced a graduated return to work. On September 23, the employee had another seizure while at work and was again transported to hospital. She returned to work on October 15, and one month later, on November 15, 2014, she suffered a further seizure that required transportation to hospital by ambulance.

Various managers then met to discuss whether the employee could be accommodated by allowing her to work from home. It was decided that this option was not practical, and further, that the employee would be put at risk if she suffered a seizure while no one was available to intervene.

Following that meeting, management considered three other positions but they were determined to be unsuitable based on the employee’s medical condition. The employer then took the position that the employee was non-compliant with treatment recommendations and her condition was unstable. The employer’s position was based on a January 2015 communication from her doctor stating that he had discussed with the employee the possibility of increasing her daily medication from one tablet to two, twice per day, but the employee wanted to leave her medication unchanged.

The employer concluded that there were no other positions where the employee could be permanently accommodated. Finally, on August 21, 2015, it advised the employee that her employment was being terminated because the employer had exhausted its attempts to accommodate her.

In addressing the issue of whether there was no reasonable prospect that the employee’s complaint would succeed, the adjudicator considered that he would approach the matter by dividing the facts into two distinct parts; with the first being the period up to the employee’s last workplace seizure in January, 2015, after which the employer did not allow the employee to return to the position of a customer information clerk, and the period thereafter where the employer looked for another accommodation and concluded that it could not offer reasonable accommodation.

The adjudicator considered that a Tribunal hearing the complaint would conclude that with respect to the first period, the employer “would be able to prove that it met the standard that a large sophisticated employer, particularly one with three bargaining units, would be expected to provide.” However, he concluded that the employer had not satisfied him that it was reasonably certain that the employer would establish that it had reasonably accommodated the employee in the Customer Information Clerk position during the second of the two periods. Relevant to this conclusion was the low standard for a complaint to proceed in the face of a s. 27(1)(c) application to have it dismissed.

The adjudicator stated that the materials presented with regard to the employee working from home were unconvincing. While legitimate issues might have been present, there was no evidence lead by the employer that the hurdles identified were insurmountable with reasonable effort or expense.

With regard to the Customer Information Clerk position, no evidence was presented as to whether any such positions had become available during this second time period. However, even if there were no vacancies, it was “not clear why she could not have been laid off for any recall period in the event that a vacancy that she was eligible for opened up.”

The application to dismiss the complaint was granted for the period before January 2015 but the application to dismiss the complaint relating to the period after January 2015 was denied.

Issues concerning employee accommodation are considered in sections 14:400 to 14:600 of the Illness and Absenteeism manual and its supplement.

In The Company and the Owner, 2017 BCHRT 266 (CanLII) (Cousineau), the employee had filed a complaint of sexual harassment. She entered into an agreement with the owner to withdraw her complaint in exchange for a payment of $800. She then advised the Human Rights Tribunal that she did not wish to withdraw her complaint. Although not specified in the settlement documentation, the employee had, during their negotiations, advised the employer that her settlement on an agreed sum was conditional on her being reinstated in her employment.

In allowing the complaint to proceed, the adjudicator stated:

People cannot contract out of their rights under the Human Rights Code …For that reason, the fact that parties have entered into a settlement agreement respecting a human rights dispute does not deprive the Tribunal of jurisdiction to hear the dispute …

Nevertheless, there are strong policy reasons that favour holding people to agreements they have voluntarily entered into:

When parties are able to resolve human rights disputes by way of a settlement agreement, considerable public and private resources may be saved. They may be able to resolve the complaint more expeditiously than would a formal hearing process. The parties may also be able to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. Finally, the mediation process itself may be better for the parties’ relationship than a formal hearing. For all of these reasons, the Tribunal encourages and assists parties in attempting to resolve complaints. [Nguyen v. Prince Albert School District No. 52, 2004 BCHRT 20 CanLII at para. 15]

These advantages are undermined if parties who resolve their complaints are subsequently permitted to come forward and pursue the same complaint at the Tribunal …

The burden is on the person seeking to pursue their complaint in the face of an agreement to persuade the Tribunal that the purposes of the Code are best served by allowing the complaint to proceed …

In considering this issue, the Tribunal has recognized a number of relevant factors: including the language of the release; unconscionability, “which exists where there is an inequality of bargaining power and a substantially unfair settlement”; undue influence; whether the party received independent legal advice; conditions of duress, which may be related to the timing of the agreement, financial need, or other circumstances; and whether the party received little or no consideration for the release … The Tribunal may also consider “the seriousness of the allegations in a complaint and what is at stake for the complainant …

The settlement agreement was silent on the issue of lost wages and the $800 settlement figure was significantly less than the employee would have been awarded for injury to her dignity, feelings and self-respect had she been able to prove her allegations at a hearing.

In allowing the complaint to procced, the adjudicator considered that there was an unequal power dynamic between the parties; the employee had not received adequate legal advice; lost wages had not been addressed and the agreement was substantially unfair.

… In this case, the substantial unfairness of the bargain combines with the power differential between the parties, the Employee’s conditions of economic and emotional distress at the relevant time, the lack of proper legal advice, and the nature of the allegations, to persuade me that the purposes of the Code are not served by holding these parties to this bargain.

Repayment of the $800 that was paid pursuant to the settlement was to be resolved between the parties “through negotiation, through a final decision of the Tribunal, or otherwise, depending on the legal advice that the parties may receive.”

Decisions addressing the issue of settlement are considered in section 14:703 of the Illness and Absenteeism manual and its supplement.

llness and Absenteeism.com - December 2017 Newsletter

Illness & Absenteeism In The Workplace