Welcome to the April, 2021 issue of the Illness and Absenteeism newsletter.  In this issue, you will find:

A. Featured Case:

The British Columbia Human Rights Commission has concluded that a customer’s refusal to wear a mask “for health reasons” in a merchant’s grocery store did not in itself amount to a contravention of the province’s Human Rights Code. [click here to read more]

B. Other Decisions of General Interest

1. A union’s failure to comply with an arbitrator’s order for production of documents resulted in the order being renewed, with the employee now being directed to execute any consents that were required to facilitate the required production. [click here to read more]
2. An arbitrator found that an investigatory meeting that “crossed the fine line between fact finding and disciplinary action” did not violate the collective agreement and was not procedurally unfair” because the collective agreement was silent on the right  to union representation. [click here to read more]
3. An arbitrator dismissed an employee’s grievance where it was later found that the employee had misrepresented his health status for the purpose of obtaining an earlier adjournment. [click here to read more]
4. An arbitrator upheld the termination of a 30 year employee for having improperly accessed the medical files of three of her co-workers. In doing so, the arbitrator rejected the union’s contention that the employer’s investigation was perfunctory and had arrived at unfounded conclusions. [click here to read more]
5. An employer’s imposition of uniform starting and quitting times, while not in itself discriminatory, constituted a failure to fulfill the procedural and substantive duty to accommodate an employee’s family status needs. The employee was awarded thirteen months of lost wages plus $20,000 as compensation for injury to his dignity, feelings and self-respect. [click here to read more]
6. A flawed employer investigation that resulted in an employee being improperly compelled to undergo alcohol and drug testing resulted in the employee being awarded monetary damages for breach of his privacy. [click here to read more]
7. The settlement of a human rights complaint does not necessarily require that the terms of the settlement have been reduced to writing. However, even where a complaint has been settled, the Tribunal retains the right to hear the underlying dispute to ensure that the settlement does not run contrary to the Code’s purposes. [click here to read more]

A. Featured Case

The British Columbia Human Rights Commission has concluded that a customer’s refusal to wear a mask “for health reasons” in a merchant’s grocery store did not in itself amount to a contravention of the province’s Human Rights Code.

In The Store, 2021 BCHRT 39 (CanLII) (Adamson), the British Columbia Human Rights Tribunal employed a preliminary screening process (set forth in its Rules of Practice and Procedure) to consider whether an individual’s complaint, if proven, could be a contravention of its Code.

The complainant was a customer who was prevented from entering her local grocery store because she was not wearing a face mask. The security guard advised her that the store had enacted a mask wearing policy and she would have to put one on or leave. The customer reportedly advised that she was exempt from wearing a mask because they “cause health issues.” She refused to divulge the nature of those issues. She left and filed this complaint.

When the Tribunal sought information about the nature of the customer’s disabilities and how they related to her inability to wear a mask, she refused to disclose any information about having a specific mental or physical disability. She simply amended her complaint to state that “It is very difficult to breathe with masks and it causes anxiety.”

The Tribunal concluded that the customer had not set out a possible contravention of the Code. While the customer had set out an adverse impact regarding a service, she had not set out facts that if proven could establish that she had a physical or mental disability that was a factor in the adverse impact.

The complaint was dismissed.

B. Other Decisions of General Interest

1. A union’s failure to comply with an arbitrator’s order for production of documents resulted in the order being renewed, with the employee now being directed to execute any consents that were required to facilitate the required production.

In Community Living Windsor, 2020 CanLII 90443 ) (ON LA) (Parmar), the employer had made a motion seeking dismissal of the grievances on the basis of the union’s failure to comply with an earlier production order. The order for production was renewed. Included in the order were:

Any and all T4 Record of Employment documents issued to the employee in respect of the 2018 and 2019 tax year.

A complete copy of the employee’s medical file from any healthcare practitioner who provided care to the employee [during a specified  12 month period], including a copy of all clinical notes, records, charts, medical and/or consultation reports, assessments, diagnostic testing appointments and reports, ambulance call reports, emergency room records, attendance schedules, treatment information and letters or emails pertaining to the employee’s treatment.

A copy of the employee’s completed tax return for 2019, along with supporting documents relating to earned income (e.g. T4s), to be provided  within 15 days of the date of filing of the tax return with the Government of Canada, as long as the matter is still ongoing.

Given that the documents were in the care and control of the employee, the arbitrator commented that the employee was expected to provide these documents to the union and sign any consents required in order for it to obtain these documents for the purpose of complying with the renewed order.

Decisions dealing with the production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its Supplement.

2. An arbitrator found that an investigatory meeting that “crossed the fine line between fact finding and disciplinary action” did not violate the collective agreement and was not procedurally unfair” because the collective agreement was silent on the right  to union representation.

In KONE Inc., 2020 CanLII 96008 (BC LA) (Knapp), the employee was an elevator mechanic who was responsible for accurately recording and submitting the time that he worked. Each mechanic carried a GPS Safety Locator Tool that recorded their whereabouts at any given point in time. The employee was expected to accurately reflect this information on his time sheets and completed work orders. The mechanic’s work was performed without supervision.

Despite repeated exhortations that he not do so, the employee continued to misrepresent the hours that he worked. The arbitrator stated that the “employee’s misconduct was not limited to a single offence but rather he repeatedly engaged in time theft, even after being shown  four specific examples of GPS data that clearly indicated that he submitted time sheets  to be paid for time he was not on the worksite.”

Having knowledge that his employer could physically track his location through the GPS technology and yet continuing to submit time sheets to be paid for time he did not work was said to demonstrate misconduct that was deliberate, pre-meditated and flagrantly defiant. The employer  issued a final written warning as a consequence of the employee’s misconduct. It testified that “while the only course of action for time theft is termination, out of concern for the [employee] and the extraordinary difficult dynamics associated with terminating him in the midst of a pandemic, they elected not to do so” and instead issued a final letter of warning advising that his employment would be terminated if he persisted with his improper conduct.

The arbitrator stated that “the jurisprudence around the misappropriation of time establishes that the [employee’s conduct was] an act of dishonesty and is very serious, constituting grounds for discharge in most circumstances." His conduct was exacerbated by the fact that he was largely unsupervised and by the fact that such conduct set a very poor example for his “helper”.

The employee argued that he had not been provided with union representation despite having inquired whether the meeting that he was to attend was to be disciplinary in nature. The employer had misinformed the employee of the nature of the meeting, explaining that it had done so because it “wanted the ‘raw truth’, meaning to receive unrehearsed answers to their questions and also wanted to ensure the [employee’s] attendance at the meeting that same day.”  The employer claimed that the meetings were investigatory rather than disciplinary in nature and that union representation was not required.

Arbitrator Knapp concluded that the employer crossed the “fine line between fact-finding and disciplinary action. Prior to the meeting, the employer had already commenced its investigation and brought to the meeting significant pre-acquired facts it compiled through extensive data that it had gathered from its sophisticated GPS Tracking Tool that [was said to be] largely irrefutable. While the employer says it did not come to those meetings with the pre-determined intention to discipline, unless there was some significant unknown discovery brought to light in these meetings by the [employee], progressive discipline was a likely and reasonable possibility, therefore shifting the realm from purely investigative to disciplinary.”

However, in the absence of a “union representation” clause, that action had not violated the contract nor could it be construed as “procedurally unfair”.

The grievance was dismissed.

Decisions dealing with an employer’s investigations are considered in section 14:431 of the Illness and Absenteeism manual and its Supplement.

3. An arbitrator dismissed an employee’s grievance where it was later found that the employee had misrepresented his health status for the purpose of obtaining an earlier adjournment.

In St. Clair College, 2021 CanLII 5444 (ON LA) (Misra), the employee applied for and was granted an adjournment on the basis of his representation, via teleconference, that he had broken his ankle. He was required to provide proof  of his injury at the next day of the hearing.

The proof that the employee provided was less than satisfactory. As a consequence, the arbitrator concluded that the employee had misled the parties and further, had not met the condition upon which the adjournment had been granted. The employer’s motion to dismiss was granted.

4. An arbitrator upheld the termination of a 30 year employee for having improperly accessed the medical files of three of her co-workers. In doing so, the arbitrator rejected the union’s contention that the employer’s investigation was perfunctory and had arrived at unfounded conclusions.

In William Osler Health Centre, 2021 CanLII 126 (ON LA) ) (Nyman), the employee had been terminated for having improperly accessed the medical files of three of her colleagues. Arbitrator Nyman stated that in a case such as this

The burden is on the [employer] to establish on a balance of probabilities the facts necessary to establish that it had just cause to terminate the [employee’s] employment.

He referenced and adopted the approach that had been set forth in Ontario (Government and Consumer Services), 2017 CanLII 21225 (ON GSB), regarding the applicable burden of proof and how it applies where the conclusions are dependent on inferences that are drawn from provable facts:

As this is a case of alleged unjust dismissal, the burden of proof lies upon the employer throughout. To discharge that burden in a case of circumstantial evidence, the inference which an employer asserts should be drawn must be more likely than not on the facts established by the evidence as a whole on a balance of probabilities and of course such evidence must be clear and cogent. It is not sufficient that the inference asserted by an employer is plausible, the most plausible of alternative explanations or even the only inference offered. The issue is always whether the inference asserted by an employer is more likely than not on the facts as found. If it is, that there are other inferences which can be drawn is of no legal consequence.

Conversely, if the inference asserted by an employer is not more likely than not on the facts as found, that there is no other alternative explanation is also of no legal consequence. While I disagree with Arbitrator Deeley in MGEU v. Sandy Bay Ojibway First Nation, in other respects …, I agree with his statement that it is not the role of the arbitrator to “solve the mystery”.  Indeed, in my view, an arbitrator must be careful of the natural human inclination to attempt to arrive at an explanation for the facts. A focus on arriving at an explanation can direct attention away from the legal question of whether the explanation is more likely than not on the evidence. The role of the arbitrator is not to arrive at an explanation of the facts per se, but rather to consider what inference or inferences, if any, are more likely than not on those facts.

While the burden of proof is always upon an employer, a union may help a grievor’s cause by adducing other evidence. Indeed, if it appears an employer will or has led sufficient evidence to prove its case, then, not as a matter of law but at a practical level, a union faces an evidentiary burden to prove other facts, (if it can) which would change the inferences which could be found to be more likely than not. This may include evidence in support of an alternative explanation.  Additionally, or alternatively, a union may argue about whether the evidence as a whole establishes on a balance of probabilities the facts on which the employer relies for its inferences, and whether the inferences which the employer asserts are more likely than not given the facts which are established. While there is no obligation upon the union to offer alternative explanations while doing so, as a practical matter offering plausible alternative explanations may cause an arbitrator to conclude that the inference asserted by the employer is not more likely than not, and thus that the grievance must be allowed.

Thus, I agree … that there is no legal onus or obligation upon a grievor to disprove the employer’s allegation or to offer an alternative explanation … This is because the burden of proof always remains with the employer. However, as noted, depending on the evidence the employer has or will likely lead, there may be a practical evidentiary burden upon the grievor (or more properly the union) to disprove the employer’s allegation or to prove facts in support of an alternative explanation.

The union had argued that the employer’s investigation was perfunctory and that it jumped to conclusions. While arbitrator Nyman commented that there was some merit to some of the union’s concerns,

… It is rare that an employer’s investigation is perfect. After all, employers are not investigative police services. That said, an employer who fails to conduct a thorough investigation runs the risk that they will mete out an inappropriate level of discipline. In this case, however, while there may be room for criticism, the [employer] has proven that the misconduct occurred upon which it based its disciplinary decision.

While the employee had 30 years of seniority, her misconduct was serious. She “failed to acknowledge any wrongdoing or the harm that she caused to the [employer] or her fellow co-workers.”  She denied wrongdoing throughout the hearing. She was “either  unwilling or unable to understand that what she did was wrong or acknowledge the harm that it caused … Moreover, if she is reinstated, she will be returning to work with colleagues whose privacy she has violated without in any way acknowledging  the wrong-doing or harm caused or even offering the slightest apology.”

The termination was upheld.

Other decisions related to disciplinary action taken for breach of privacy can be located by referencing the keyword “privacy” in the updated index found at the beginning of each month’s Supplement.

5. An employer’s imposition of uniform starting and quitting times, while not in itself discriminatory, constituted a failure to fulfill the procedural and substantive duty to accommodate an employee’s family status needs. The employee was awarded thirteen months of lost wages plus $20,000 as compensation for injury to his dignity, feelings and self-respect.

In Paragon Linen and Laundry Services Inc., 2021 HRTO 98 (CanLII) (Best), the employee had been granted an accommodation by the employer that permitted him to leave work at 2:30 pm (rather than 4:00 pm) to meet his child care responsibilities. That accommodation permitted the employee and his spouse to coordinate their work shifts and to meet both their child and their elder care responsibilities.

In the fall of 2017, the employer revoked the accommodation and required the employee to stay until 4:00 pm. Its rationale for doing so was that its business was struggling financially and that it was required to “revoke all workplace flexibility and accommodations due to the financial burden and hardship these were imposing on the [employer’s] business.”

The recently hired General Manager posted a notice that required all employees to work their full scheduled shifts. The employee continued to leave at 2:30 pm, and it was not until the day that he was terminated that a second notice was hand-delivered to all employees. He spoke to his supervisor and was advised that the impact of the notice was that he would now have to work until 4:00 PM. The employee then advised his General Manager that he had no choice but to leave at 2:30 pm.

That night, the employee and his spouse considered how they might address the situation. The employee’s spouse testified that she had approached her employer and they had advised that they would consider changing her to another shift, but it might be some time until an opening became available on a different shift. The following day, the employee advised his General Manager that his spouse had sought to change her shift with her employer but that it may take several months before that could be put in place. The employee was handed a letter as he left work at 2:30 pm that day. It advised that he was being suspended for five days without pay because of having left early. Two weeks later, the employer terminated the employee’s employment.

The adjudicator commented that the employer challenged the employee’s credibility, particularly with regard to his evidence respecting elder care obligations. He noted however, that the employer failed to seek additional information at the time to support the employee’s need for a modified schedule or to establish that leaving at 2:30 pm was an accommodation need rather than a preference:

Having not done so at the time, the [employer] cannot now justify its decision to change the [employee’s] hours by an after-the-fact challenge to the [employee’s] accommodation needs.

The evidence established that the employee and his spouse lived with her elderly parents and their three children aged six, four and two.  The parents had significant health issues and could not leave the house unless accompanied by another. They were not able to look after the youngest child and could be left alone with her for no more than a few minutes. This necessitated that either the employee or his spouse be at home almost all of the time.

The employer’s evidence was that the requirement for all employees to work from 8:00 am to 4:00 pm was not implemented for a discriminatory purpose but to increase efficiency in running the business. The adjudicator accepted that the employer’s rationale constituted a legitimate basis for a policy change and that it was not, in and of itself, discrimination on a prohibited ground:

The change to strictly require uniform start and end times for all employees on the shift, however, may have had an adverse impact on those individuals who had relied on the previous flexibility to arrange their child or elder care needs, and as such, the duty to accommodate arises … In the case of the employee, the duty is even clearer. He had not simply taken advantage of the [employer’s earlier] flexibility, but had specifically requested, and been granted, modified hours to accommodate his family status needs.

The employee had attempted to engage in a dialogue to explore options but the employer did not. “By failing to participate in the process, the [employer] has failed in the procedural and substantive duty to accommodate the [employee’s] family status needs.”

The employee was awarded the five days of lost wages attributable to the improper suspension and $29,280 less statutory deductions for 13 months of lost wages prior to his being able to secure alternate employment. The employee was also awarded $20,000 as compensation for injury to dignity, feelings and self-respect.

The employer sought to have the award for lost wages reduced by any amounts that the employee had received by way of employment insurance benefits. The adjudicator rejected that approach, stating that

The law is clear, however, that Employment Insurance benefits, which may be subject to repayment should a claimant subsequently receive employment income for the same period, should not be deducted from an award of damages for lost wages.

Cases involving child care and family leave issues can be located by referencing the  keywords “discretion, requirement for employer to exercise“ found  within the updated index located at the beginning of each month’s Supplement.

6. A flawed employer investigation that resulted in an employee being improperly compelled to undergo alcohol and drug testing resulted in the employee being awarded monetary damages for breach of his privacy.

In Tolko Industries Ltd, (Lakeview Division), 2020 CanLII 89926 (BC LA) (Hall), the employee failed to lock out a conveyor belt when circumstances dictated that he do so. A one day suspension was imposed for that offence. The arbitrator rejected the union’s submission that the suspension should be reduced to a warning:

The employer relies on the accepted admonition that arbitrators should not “fine tune” the disciplinary sanctions selected by management … In a different context, the distinction between a written warning and a one day suspension might be examined more closely. There is no need to dwell on the point here as a one day suspension falls at the low end, if not at the bottom, of the range of sanctions imposed by arbitrators for a single lock out violation … The union has not brought forward any award where a written warning was viewed as appropriate for a lockout violation.

In the course of assessing matters, the supervisor completed a post-incident questionnaire which led him to a determination that alcohol and drug testing would assist his investigation.

His investigation was found to have been flawed, in that the Plant Supervisor had never asked the employee to explain why he had failed to lock out the equipment.

The employee was suspended while waiting the results of the tests. The results were negative, and the employee was ultimately compensated for the eight days that he was out of work.

The union sought damages for the employer’s breach of the employee’s privacy rights. The arbitrator rejected the employer’s argument that only nominal damages were appropriate. He stated:

I reject the notion that only “nominal damages” are appropriate where an employer has failed to demonstrate reasonable and proper grounds to subject an employee to alcohol and drug testing. The privacy interests at stake have been long recognized as substantive rights by no less an authority than the Supreme Court of Canada. Further, awarding only nominal damages as a matter of routine may not give an employer sufficient incentive to pause and ensure its investigation has indeed been thorough before deciding to test.

The arbitrator ordered that the employee be paid damages in the amount of $1,750.

The larger issue of balancing employee privacy against the employer’s workplace interests is considered in Chapter 1 of the Illness and Absenteeism manual and its Supplement.

7. The settlement of a human rights complaint does not necessarily require that the terms of the settlement have been reduced to writing. However, even where a complaint has been settled, the Tribunal retains the right to hear the underlying dispute to ensure that the settlement does not run contrary to the Code’s purposes.

In Energy Safety Canada, 2021 BCHRT 32 (CanLII) (Cousineau), the adjudicator stated that the issue involved a determination of whether the parties had entered into a valid settlement agreement:

The issue of whether the parties entered into a valid settlement agreement is an objective one. [The employer] must show that the parties reached consensus on the “essential elements of their agreement” and that there was, on those issues, a “meeting of the minds” … It is not necessary that a settlement agreement be signed or in writing … In the absence of a written agreement, the Tribunal may consider “the circumstances in existence at the relevant time, the genesis and aim of the transaction, and the conduct of the parties during, and subsequent to, the purported making of the contract” …

The adjudicator also commented on the continuing role of the Commission even after the settlement of a complaint:

The fact that the parties have entered into a settlement agreement respecting a human rights complaint does not deprive the Tribunal of jurisdiction to hear the dispute … This is because parties cannot contract out of their rights under the Code … In deciding whether to allow a complaint to proceed in the face of a settlement agreement, the Tribunal is seeking an outcome that best furthers the purpose of the Code.

… There may be circumstances where the terms of the parties’ settlement, or the conditions under which it was reached, run contrary to the Code’s purposes. The Tribunal has recognized a number of factors that may signal such circumstances, including: unconscionability, “which exists where there is an inequality of bargaining power and a substantially unfair settlement”; undue influence, where the party did not have access to 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 adjudicator determined that the complainant received the substantial benefit of the agreement which he negotiated. It was consistent with what he was entitled to under the Code. It did not further the purposes of the Code to allow the complaint to proceed. It was therefore dismissed.

Issues related to the enforceability of human rights settlements can be located by referencing the  keywords “Settlement agreements, enforceability of”  in the updated index found at the beginning of each month’s Supplement.