Illness & Absenteeism - April 2022 Newsletter

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Welcome to the April 2022  issue of the Illness and Absenteeism newsletter.  In this issue, you will find:

  1. Production of documents will only be awarded where the documents sought can be used to prove or disprove a material fact. [click here to read more]
  2. An employer’s obligation to address a harassment complaint is not generally triggered until the employer is made aware of the allegations, usually as a result of a complaint brought forward by the employee who had been subject to the harassment. [click here to read more]
  3. The principles governing the interpretation of collective agreements were recently summarized by arbitrator Nyman in Durham District School Board. [click here to read more]
  4. An arbitrator upheld a suspension for misuse of sick leave in a case where the employee had been denied vacation leave during that same period. [click here to read more]

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1. Production of documents will only be awarded where the documents sought can be used to prove or disprove a material fact.

In Westin Hotel Company Ltd. (Westin Bayshore Hotel), 2021 CanLII 20883 (BC LA) (Saunders), the union sought production of the employer’s monthly profit and loss statements. The adjudicator set forth the test for production in British Columbia:

The applicable test for document production is set out in the University of British Columbia, BCLRB No. B138/210, 182 C.L.R.B.R. (2d) 200 (“UBC”):

29. Documents which fit the following description should be disclosed:

All documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact.

Adjudicator Saunders stated that “material facts are those that bear on the resolution of the legal issues in dispute.”

In identifying the relevant issues, the adjudicator considered that he would have regard to the grievance, the parties’ exchange of particulars, and their opening statements and oral submissions. In considering whether the documents being sought could be used to prove or disprove a “material fact”, the adjudicator found that the employer’s profitability during the pandemic did not have a bearing on the resolution of the issues in dispute, and consequently, related documents were not compellable.

The adjudicator also considered whether the union could be compelled to produce a video recording of a staff meeting (and a transcript of that meeting) that had been secretly recorded by a union staff representative. He began by noting that arbitrators have the discretion to admit evidence of surreptitious audio recordings, and that prior panels have expressed concern that the routine admission of surreptitious recordings might have a deleterious effect on labour relations. In this case, the adjudicator found that the recording and the transcript were of little probative value concerning the material facts. Further, both the shop steward and management representatives were available to testify as to what persons said at the meeting. In declining to require the production of the recording and the transcript, the adjudicator stated that “the prejudicial labour relations impact of admitting the recording [outweighed] its probative value in this proceeding.”

2. An employer’s obligation to address a harassment complaint is not generally triggered until the employer is made aware of the allegations, usually as a result of a complaint brought forward by the employee who had been subject to the harassment.

In Great Lakes Greenhouses Inc., 2021 HRTO 205 (CanLII) (Best), an application to produce was dismissed on basis that it had no reasonable prospect of success. The employee applicant conceded that he had never raised his allegations of harassment with the employer, with the arbitrator stating  that under the Human Rights Code of Ontario, “the obligation to address allegations of workplace harassment is triggered when an employer is made aware of the allegations, usually as a result of a complaint.” Absent that awareness on the part of the employer, the application had no prospect of success.

3. The principles governing the interpretation of collective agreements were recently summarized by arbitrator Nyman in Durham District School Board, 2021 CanLII 14618 (ON LA) (Nyman).

The parties filed Will-Say statements which were adopted in evidence by the witness and supplemented with limited additional evidence in chief. The party opposite was able to cross-examine the witness. The parties’ arguments focussed on the terms of or interrelationship of several documents, including the collective agreement, the existing benefits trust, provisions related to the Employment Insurance rebates which were to be shared between the employer and its employees, and relevant provisions from a website maintained by the Trust.

The parties agreed that the issue before the arbitrator was an exercise in collective agreement interpretation. Arbitrator Nyman commented that the principles applicable to such an exercise were well-established and not in dispute. He referenced with approval the following oft-quoted passage from Ontario Power Generation, 2012 Can LII 81972 (Surdykowski):

77. The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. Both the words that are there and the words that are not there are significant, particularly when the parties [as in this case] are sophisticated users of language.

78. Although as a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. Much has been written about purpose, fairness, internal anomalies, cost or administrative feasability and what “should be”. Such considerations only come into play when the language is truly ambiguous and the arbitrator must choose between two or more equally plausible interpretations. The task of a rights arbitrator is to determine what the collective agreement provides or requires, not what he or one of the parties thinks it should say, regardless of the apparent fairness of the effect on either party or on bargaining unit employees. The parties are entitled to no more or less than what the collective agreement stipulates, and clear wording trumps all considerations other than legislation.

Arbitrator Nyman continued:

There is equally no dispute that evidence of collective bargaining context is admissible as an aid to interpretation. In Halton Recycling [the arbitrator noted that] in recent years, labour arbitrators have adopted the approach of the civil courts to conclude that evidence regarding the context in which collective agreement language was negotiated is admissible to enable the arbitrator “to read the contract as a whole, giving the words used the ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of the formation of the contract.”

It is the words used by the parties that retain primary importance. Further, arbitrator Nyman commented that contextual evidence should be used with constraint:

34. Sattva and Dumbrell also provide guidance as to when contextual evidence should be admitted. Both judgments make it clear that a decision-maker should exercise restraint. The inquiry should not be directed at what the subjective intentions of the parties may now be said to have been. It means that the words used by the parties to express their intention should retain presumptive prominence but context should not be ignored.

Finally, arbitrator Nyman dismissed the employer’s reliance on the Trust’s memorandum and website, stating that “it is difficult to see how these documents, created by a non-party, are admissible as an aid to interpretation. Nor can they override the language of the collective agreement.”

The grievance was allowed.

4. An arbitrator upheld a suspension for misuse of sick leave in a case where the employee had been denied vacation leave during that same period.

In The Halifax Herald, 2012 CanLII 10296 (NS LA) (Kydd), the employee had been denied two weeks of vacation leave because that vacation period had been requested by another. The employee then obtained a doctor’s note covering the same period and left it under her manager’s door prior to leaving on “sick leave.” The note simply indicated that the employee had been examined and was found to be unfit until the date specified in the note. Management was immediately suspicious, for the employee was found to have driven her mother to Florida during the period covered by the medical note.

After a meeting following the employee’s return, management wrote to advise that it required additional information. It requested that the employee provide the following:

Was the note you previously provided from your family doctor? If not, please provide us with information about the physician you saw (i.e., was this a walk-in clinic or physician filling in for your doctor, etc.)?

Were you out of the country during your period of absence from the workplace? If you say no, please provide us any and all proof confirming that you were [in] Nova Scotia, for example cell phone records, credit card bills, etc.

The employee was asked to provide a letter from her doctor, by a specified date, addressing the following:

The date the employee sought medical attention in relation to her recent absence from work.

The nature of the employee’s illness/medical condition such that it rendered her incapable of carrying out her duties on the relevant dates.

The symptoms that the employee had complained of.

Whether the performance of modified duties had been considered in respect of the period of absence?

Did the medical examination reveal objective symptoms of an illness/medical condition or was the diagnosis based on the employee’s reported symptoms?

Did the employee follow a recommended treatment program?

Had the employee recovered from her illness/medical [condition] such that she was now able to return to her full duties?

Did the employee advise her physician that she had previously requested and been denied vacation for the same time period covered by the medical certificate?

The letter advised the employee that failure to provide the information by the specified date might result in discipline up to and including dismissal.

The employee’s response from her physician failed to address a number of the questions that had been posed. The employee had also failed to respond to the first two questions. The employer then wrote to the employee detailing the circumstances that led it to conclude that the reasons that she provided for her absence were false.  The employee was given one further chance to provide the requested information, failing which her employment would be terminated.

The employee then wrote to the employer and advised that she had sought leave from her doctor because of stress that she was suffering as a result of changes in the workplace and interactions with her manager. She contended that her having driven to Florida to assist her mother was in keeping with her doctor’s orders.

Additional information was provided by the doctor, but no response was directed to the question of the symptoms complained of. The employee however advised that she did not feel the employer needed to or had a right to know this information.

The employer then wrote to the employee, stating that it believed that the symptoms that the employee complained of were relevant to its investigation. However, in recognition of the employee’s concerns regarding her privacy, it was prepared to have an independent physician review her file and determine whether there was information that may be embarrassing, and whether the symptoms warranted the period of absence. If so, the employer would not require disclosure of further details regarding the employee’s illness.

The employee was advised that in the alternative, she could accept a suspension for the time away from work (23 days).

Following a series of non-compliant emails from the employee, the employee finally agreed to have her file reviewed by an independent physician who would then provide answers to these questions. Thereafter, the parties exchanged a series of emails in an effort to refine the questions to be asked. Failure to arrive at a resolution caused the employer to then suspend the employee for the 23 days

The arbitrator defined the issue as being whether the employer had the right to discipline the employee based on the evidence presented (as opposed to whether the employer had been entitled to the medical information requested). He concluded that the employer met the onus to establish that it had just cause to impose the discipline:

The actions of the grievor in taking sick leave that coincided with the dates of the vacation that she had requested and that had been denied, without prior consultations with anyone, and the absence of any observable illness prior to taking the sick leave, point initially to an improbable coincidence, giving the Employer reasonable justification to require an explanation from [the employee]. The evidence of the grievor’s actions both prior to taking the sick leave, and on her subsequent return, lead to the conclusion that she was abusing her sick leave and that her alleged sickness was concocted as an excuse to obtain the denied vacation time.

Of particular note was that the medical documentation was slipped under a door in circumstances where it could have been delivered and the fact that the employee had never raised the circumstances that she stated were the source of her stress. Her actions following her return were viewed as “stone-walling’.

Neither the employee nor her doctor were called to give evidence. The arbitrator observed that the employee’s assertions “made in the correspondence were not made under oath or subject to cross-examination, such that they are not entitled to be given any weight as a rebuttal to the circumstantial evidence presented by the Employer that convinces me that there is a high probability that [the employee] misused her sick leave by claiming that she was sick and unable to work while her motive was to go to Florida. I also agree … that an adverse inference should be drawn from the grievor’s failure to testify.”

The arbitrator found that the circumstances were such that the employer was entitled to know what the symptoms were (as opposed to a bare diagnosis).

The arbitrator commented that an employer has no authority to discipline an employee for failure to provide medical information; rather its remedy is to deny payment of sick benefits, or, in a case such as this, impose discipline for the misuse of sick leave. In this case, the arbitrator concluded that the employer had met the onus of establishing that it had just cause to impose the discipline.

The grievance was dismissed.