llness and Absenteeism.com - December 2013 Newsletter
In this edition you will find...
Feature Case: A termination was upheld where an accommodated employee left work and then failed to respond to the employer’s efforts to meet with him during the four weeks that followed. The fact that the employee had been upset was not sufficient to establish a justifiable medical basis for leaving work.
In Spectra Energy Transmission, 2013 CanLII 64307 (BC LA) (McPhillips), the employee had shoulder surgery following a work place injury, and from that point was accommodated at work with respect to the amount of weight he could lift. Following a series of incidents, the employee was terminated, primarily for not attending at work and not completing his mandatory safety training, as required.
After having dismissed the contention that the employee had voluntarily resigned, the arbitrator characterized the events as a termination for insubordination with respect to attending at work.
The employee had left work without notifying his appropriate supervisor and then failed to attend work for the next four weeks. “… he would not respond to emails, refused to attend meetings with the Employer and then when he did, on [one particular date], offered no explanation at all ‘based on legal advice.’”
The arbitrator commented that the employee’s failure to attend work was “an extremely serious matter in terms of operational efficiency, inconvenience to managers and his fellow workers, and additional costs (e.g. overtime) for the Employer … Employees have an obligation to communicate with their employer and to respond to legitimate inquiries made of them and [the employee] refused to do either.”
The employee advanced two justifications for his behavior. Firstly, he considered himself to have been harassed and treated unfairly. The arbitrator found that there was no evidence to support that assertion:
… to the extent that [the employee] may have been feeling genuinely frustrated, it was with the fact that supervisors were attempting to do their job and wanted to properly manage the enterprise while [the employee] felt he should be left alone to do as he pleased.
The employee also asserted that his absence was justified by the Physician’s Assessment Form that he submitted. That form was completed three days after the employee left work. The arbitrator found it to be lacking:
In considering whether to accept medical evidence there are a number of authorities which have set out the relevant considerations … Some of the issues identified in these authorities which cause difficulty here include:
(1) The doctor did not testify and, therefore, the evidence is hearsay and cannot be relied on to establish a crucial point of evidence.
(2) The doctor was not a properly qualified expert in the field of psychological disorders, in this case, anxiety.
(3) There was no testing of [the employee] ever done by the doctor and there is no evidence whatsoever of the basis upon which he arrived at his diagnosis.
(4) The doctor relied on the Grievor’s subjective description of how he felt and, in that, could have been misled.
(5) The Grievor was never referred to a specialist nor was any medication prescribed.
(6) The Grievor never underwent treatment of any nature, either during the entire month in question or following his termination …
The arbitrator stated that even on the employee’s own evidence, “there was no examination or testing done on him; this was simply a case of a self-diagnosis, with which a friendly doctor, as an advocate for his patient, went along.” He stated that he was prepared to accept that the employee was upset, “but that is far different from establishing a justifiable medical basis for his behavior in leaving work … and then refusing to attend subsequent shift assignments over the following four weeks.” The arbitrator concluded that the employee’s “continuing refusal to attend at work was not justified and constitutes a case of serious insubordination on his part.”
An employer’s entitlement to evaluate a medical certificate and issues involving an unauthorized absence from work are considered in sections 7:401, and 17:201 of the Illness and Absenteeism manual, commencing at pages 133 and 812 respectively.
1. Different considerations may apply in assessing accommodation where the disability is permanent rather than temporary in duration.
In Nestle Purina Petcare, 2012 CanLII 65216 (ON LA) (Jesin), the grievor suffered from a back injury that prevented him from performing his job as a maintenance mechanic. He sought an accommodated position, but the employer was unable to identify permanent work that was available for him in his classification.
In considering whether the employer could have accommodated the employee, arbitrator Jesin stated:
Clearly, the Employer has a continuing duty to accommodate a disabled employee to the point of undue hardship. In exercising that duty, however, arbitrators have stated that an employer is not required to create a new job specifically for the employee or to carve out parts of an employee`s job where an employee is unable, due to disability, to perform the core duties of his/her job …
At least one arbitrator has pointed out that in considering the extent to which an Employer must accommodate by providing only some of the employee`s regular duties, different considerations apply depending on whether the restrictions on the employee are temporary or permanent. That is because it is easier and more beneficial for an employer to carve out lighter duties to assist an employee in reintegrating back into work than to carve out such duties on a permanent basis. In Canada Post Corp.,  C.L.A.D. No. 1204 (T. Joliffe) the arbitrator explained the point at paragraph 77 in the following terms:
… I do understand that the issues of productivity and ability to perform should [not] be considered quite in the same light [for permanently disabled employees] as with temporarily disabled employees who are expected to recover to the point of full capacity. It is one thing to structure temporary light duties to assist a person toward recovery where the emphasis need not be on the economic worth of the activity to much or any degree … It is quite a different issue when structuring duties suitable for a disabled person on a permanent basis which I suspect invites more weight to be placed on the productivity/financial cost side of the equation. There might be any number of temporary modified duties situations which can develop which do not bear up well under the scrutiny of undue hardship when it is a matter of accommodating an employee on a permanent basis.
Still some arbitrators have found a breach of the duty to accommodate where the Employer has failed to carve out some of the lighter duties from the employee’s regular job, particularly where the Employer has assigned other employees to duties which do not include the heavier duties of a position …
In the end … each of these cases turn on their particular facts.
The arbitrator also concluded that the employee was not entitled to be accommodated in positions that were then being occupied by others:
The Employer is not required to remove another employee from a position in order to accommodate a disabled employee. Furthermore, as the cases make clear, the Employer is not required to create an additional position in order to accommodate the grievor. There is simply no position available for the grievor [in these] classifications. Therefore the Employer was not required to place the grievor in either of those positions in the circumstances of this case.
Distinguishing between temporary and permanent accommodation obligations and matters related to accommodating employees where no suitable positions are available are considered in sections 14:470 and 14:613 of the Illness and Absenteeism manual, commencing at pages 591 and 663 respectively.
2. An employer’s refusal to add a legally blind employee to its job-posting distribution list was held to constitute a free-standing violation of the Ontario Human Rights Code. The employer’s failure to involve the union when a suitable vacancy became available constituted a further violation of the Code.
In District School Board Ontario North East (2012), 225 L.A.C. (4th) 219 (Davie), the employee suffered from Retinitis Pigmentosa. She was essentially blind. Various accommodations had been implemented as her sight deteriorated. The employee was, in the normal course, declared redundant. She was given a choice of bumping a junior employee, being placed on the recall list, or electing severance. The employee elected to be placed on the recall list and was recalled to a different position some time later.
The employee subsequently requested that the employer add her to its email list for new postings. In making that request, the employee advised that this would avoid her having to remove postings from the bulletin board and then place them on her CCTV (closed-circuit television or video magnifier) in order to read them. The employer replied that this was not practical, and it suggested that the employee arrange to have the union forward the postings on to her for that purpose. The employee was however disillusioned with the Union and its local representatives.
The arbitrator found that the employer’s failure to agree to add the employee to the list of job posting recipients was discriminatory and represented a failure to accommodate her disability. It amounted to a free-standing violation under the Code and resulted in injury to dignity and the inherent right to be free from discrimination.
The arbitrator also found that the employer’s failure to involve the union when a potentially suitable vacancy became available amounted to a breach of the duty to accommodate:
That change to a new location would necessarily require that accommodative measures be put in place. The Union should be involved at an early stage when application of the collective agreement recall procedures involve the transfer to a new location of a disabled employee who needs to be accommodated. In this case that did not happen even though the grievor raised concerns about transferring to a new location. In this regard therefore the Employer violated the collective agreement and its obligation under the law to involve the Union in what is a tripartite obligation to accommodate disabled employees.
The arbitrator ordered the employer to pay $6000 in damages, and further directed the employer that it must involve the union in all staffing matters regarding the placement and accommodation of disabled bargaining unit employees.
The requirement for an employer to consult with the union in respect of potential accommodation opportunities is considered in section 14:601 of the Illness and Absenteeism manual, commencing at page 627 of the manual.
3. An employer’s failure to strictly enforce the terms of a last-chance agreement may be viewed favourably where the employer counsels rather than terminates an employee for a breach of the agreement.
In GE Hitachi Nuclear Energy Canada, 2013 CanLII 36480 (ON LA) (Knopf), the employee was terminated for having breached the terms of a “second” last chance agreement. That agreement came about by way of settlement of a termination grievance that arose from a breach of the first agreement.
The second agreement stated that its terms were consistent and in compliance with and constituted accommodation of any of the employee’s disabilities to the point of undue hardship as per the requirements of the Canadian Human Rights Act. While intermittent and excessive absenteeism appeared to be the employer’s primary concern, no specific disabilities were mentioned by the arbitrator. Nevertheless, she commented that the employer had accommodated and tolerated the employee to the point of undue hardship.
The agreement had provided that the employee’s level of absenteeism was not to exceed the level of the group of employees reporting to the employee’s manager. When the employee was ultimately terminated, his level of absenteeism during the preceding six months was 9.17 % as compared to the average of 2.63 %.
In upholding the termination, arbitrator Knopf commented favourably on the fact that the employer had counseled rather than terminated the employee when he initially breached a term of this agreement. The employer had not acted in an opportunistic way but rather had taken a more principled approach in that it counseled him, offered assistance and made it clear that continued violations of the last chance agreement could lead to his termination.
A failure to consistently require that an employee abide by the terms of a last-chance agreement and the enforceability of last-chance agreements in general are considered in sections 16:203 and 16:205 of the Illness and Absenteeism manual, commencing at page 760 and 763 respectively.
4. Litigation privilege does not attach to meeting notes which merely record facts as they occur.
In Metropolitan Toronto Apartment Builders Association, 2013 CanLII 59513 (ON LA) (Steinberg), the union, in the context of an interest arbitration, sought production of notes taken by the employers’ counsel during a meeting with officials of the Competition Bureau. The employers claimed a litigation privilege in those notes.
The arbitrator stated
The applicable legal principles to be applied in this case are not controversial. Litigation privilege includes communications between a solicitor and third parties (in this case the Competition Bureau officials) in order to ensure the efficacy of the adversarial process … There are two conditions that must be met in order for communications to be protected by the privilege. First, the communications must be made with existing or contemplated litigation in mind. Second, the dominant purpose of the communication must be to assist in the litigation … The privilege does not attach to notes which merely record facts as they occur …
After having reviewed the original and redacted copies of the notes, the arbitrator ordered that the notes be provided to the union in unredacted form except for redactions that were found on the first page of the notes. In response to the union’s request for reasons related to this exception, the arbitrator stated
The notes were “notes to self” made by counsel as a result of the conversations with the officials at the Bureau. The content of the redacted part of the notes related specifically to counsel’s opinion regarding the scope and nature of a written opinion to be received from the Bureau and his view of the value of what was to be received. The notes also refer to work that needed to be done in respect of certain issues as a result of the opinion to be received and in that respect were part of the strategy to be utilized in the litigation. The redacted notes did not simply record statements made by the Bureau to [counsel] or vice versa.
In my opinion, these notes were made in contemplation of litigation and clearly have as their dominant purpose assisting in that litigation. They do not simply record factual matters or comments made by the Bureau officials with whom counsel was speaking. As a result, litigation privilege attached to these notes.
The elements of litigation privilege, and in particular, its application to interview notes taken in the course of investigating a disciplinary matter, is considered in section 10:405 of the Illness and Absenteeism manual, commencing at page 310 of the manual.