llness and Absenteeism.com - December 2017 Newsletter
In this edition you find:
A. Featured Case: An investigator’s report is not admissible as proof of the truth of the statements contained in the report. The report may however be admitted for the limited purpose of establishing the information that the employer relied on in making its decision. [Click here]
B. Recent Decisions of General Interest
1. A union is not entitled, as a matter of right, to be consulted with regard to every instance of employee accommodation. [Click here]
2. A disclosure order may compel a party to make its best efforts to obtain missing or destroyed documents from a secondary source. [Click here]
3. Not every act of foolishness or insensitivity in the workplace will be considered to constitute workplace harassment. [Click here]
4. A workplace is not “frozen” while an employee is absent on maternity or parental leave. [Click here]
5. An alcoholic employee who failed to comply with imposed monitoring provisions was unsuccessful in a plea for further accommodation, for it was considered to constitute an undue hardship to require the employer to continue accommodating an employee for whom the prospect of success was marginal. [Click here]
6. Unless otherwise specified, the term “funeral” as used in a collective agreement is to be given a broad interpretation that encompasses the varying habits, customs and traditions found in a pluralistic society. [Click here]
7. An employee’s lateness, while not considered culpable, was subject to discipline where the employee failed to advise the employer of her pending lateness at the first available opportunity. [Click here]
8. An employee who violated the confidentiality of patient records was reinstated but without compensation. The employee effectively served a 22 month unpaid suspension. [Click here]
A. Featured Case: An investigator’s report is not admissible as proof of the truth of the statements contained in the report. The report may however be admitted for the limited purpose of establishing the information that the employer relied on in making its decision.
In Marine Atlantic Inc., 2016 CanLII 95889 (NB LA) (McEvoy), the employee was suspended without pay for one month after a 12 month investigation conducted by an independent third party found that he had been guilty of harassment.
The employer proposed to present its case through the “investigator’s report, the testimony of the investigator, and the testimony of the management representative who considered the investigator’s report when [the employer] decided to impose discipline. It [did] not intend to present the testimony of the complainant and of other persons interviewed by the investigator …”
The arbitrator concluded that the investigator’s report could be introduced for limited purposes:
1. Absent special circumstances … the investigation report is admissible for limited purposes relating to the information relied on by [the employer] when making the decision to impose discipline but is not admissible at the grievance hearing as the proof of the truthfulness of the hearsay statements contained in the report to establish just cause for discipline or for the discipline imposed.
2. Absent special circumstances, … the investigation report is not admissible as the proof of the truth of the hearsay statements of persons interviewed by the investigator in combination with the admissible intended testimony of the investigator and of the management representative; [the employer] is required to call direct evidence from witnesses interviewed by the investigator in support of just cause and the imposition of discipline. The weight to be accorded the investigation report as a factor “among other factors” depends upon the nature and the weight given to the evidence of the “other factors” and can only be determined after all evidence is presented.
The admissibility of hearsay evidence and investigative reports are considered in Chapter 10 and section 11:201 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
In Telus Communications Inc., 2017 BCCA 100 (CanLII), the arbitrator had determined that the union was entitled to receive notice of all employee requests for accommodation involving matters of medical disability. That decision was subsequently quashed by an order of the British Columbia Supreme Court. The latter decision was then appealed to the British Columbia Court of Appeal.
In confirming the decision of the lower court, the Court of Appeal cited three arbitral decisions that “persuasively” described the correct approach to a union’s inherent right to participate in the accommodation process.
In National Steel Car , arbitrator McLaren had concluded that in the absence of a negotiated right, a union was not entitled to “generally be present during all meetings with its members and the Company personnel for ‘WSIB, sick benefit, early and safe return to work and benefit, pension and insurance purposes’.” In the 2001 case of St Paul’s Hospital, arbitrator Jackson stated that the law did not impose a general obligation on an employer to involve the union in its search for accommodation. “The union should be offered that opportunity if it is a potential party to the discrimination either because the union participated in formulating the work rule or practice that discriminates (usually because it is part of the collective agreement) or if the union's co-operation with the employer’s efforts to find a reasonable accommodation is necessary for a solution to be found …” And arbitrator McConchie, in Vanderhoof Specialty Wood Products , had similarly stated that “the union has a concurrent responsibility with the employer to accommodate, which only arises if a union is party to discrimination. It may become a party in two ways: (1) by the negotiation of work rules in the collective agreement; or (2) by impeding employer efforts to accommodate. In day to day operations, the union’s duty only arises when its involvement is required to make accommodation possible and no reasonable alternative resolution has been found.”
Telus had acknowledged that the union had a right to participate in cases where the employee had asked for union representation. The Court of Appeal accepted that view, and nothing in the decision should be taken to limit a union’s role where the employee has asked for union involvement in the process.
The issue of accommodation is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
In Gambler First Nation, 2017 CHRT 13 (CanLII) (Pannu), the Complainant sought an order of production of Band documents containing project particulars and Band construction priorities. The Band contended that many of the documents had been removed by Band members during a takeover of the Band Office and consequently were no longer available.
The adjudicator stated that the test for disclosure (arguable relevance) requires that:
A party must show not that the evidence is relevant not in a traditional sense, but that disclosure of a document will be useful, is appropriate, is likely to contribute to advancing the debate and is based on an acceptable objective that he or she seeks to attain in the case, and that the document is related to the dispute … If there is a rational connection between a document and the facts, issues or forms of relief identified by the parties in the matter, it should be disclosed.
A disclosure order was issued, with the adjudicator stating that respondent First Nation should use its best efforts to provide the documents sought, with that to include seeking a copy of any missing documents from the relevant federal government department.
Matters related to the production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
In Canada Post Corporation, 2017 CHRT 8 (CanLII) (Thomas), the employee contended that she had been harassed in her employment. The adjudicator set forth the Canadian Human Rights Commission’s approach to determining whether harassment has occurred:
The Tribunal has attempted to define harassment as any words or conduct that are unwelcome or ought reasonably to be known to be unwelcome, related to a prohibited ground of discrimination that would detrimentally affect the work environment or lead to adverse job-related consequences for the victim. Harassment usually denotes repetitious or persistent acts, although a single serious event can be sufficient to create a hostile work environment … In the context of harassment based on disability, the Tribunal has held that the key is to examine whether the conduct has violated the dignity of the employee from an objective perspective such that it has created a hostile or poisoned work environment …
In the context of alleged harassment that is not sexual in nature, the Tribunal has considered whether or not comments about one’s disability are relevant to or consistent with the legitimate operations and business goals of the employer. If they are, such comments may not constitute harassment. On the other hand, derogatory comments or unnecessary questioning about a disability are irrelevant and extraneous to the safety, operations and business goals of the employer. Such conduct, where it is humiliating or demeaning, can constitute harassment …
The adjudicator cited with approval the following passage from International Longshoremen’s and Warehousemen’s Union, Local 502 2015 CHRT 21 (CanLII):
Every act by which a person causes some form of anxiety to another could be labelled as harassment. What offends one person may not offend the next person at all. Furthermore, none amongst us are perfect, and we are all capable of being, on occasion, somewhat thoughtless, insensitive and perhaps even outright stupid. Does this mean there can never be any safe interactions between people? The question is not so much whether one is offended or feeling humiliated, but by what objective measure can we define harassment, so that people everywhere know exactly how to conduct themselves to avoid it.
I do not think that every act of foolishness or insensitivity in the workplace was intended to be captured under section 14 of the CHRA. Harassment is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. To do otherwise would be to trivialize it. It should not be cheapened or devalued in its meaning by using it to loosely label petty acts or foolish words where the harm, by any objective standard, is fleeting.
The adjudicator also considered the jurisprudence regarding an employer’s obligation to investigate human rights claims. He referenced Canada (Employment and Immigration Comm.) (1988) 10 C.H.R.R. D5683 (CHRT) at para. 41611:
Although the C.H.R.A. does not impose a duty on an employer to maintain a pristine working environment, there is a duty upon an employer to take prompt and effectual action when it knows or should know of employees’ conduct in the workplace amounting to racial harassment … To avoid liability, the employer is obliged to take reasonable steps to alleviate, as best it can, the distress arising within the work environment, and to reassure those concerned that it is committed to the maintenance of a workplace free of racial harassment ...
The adjudicator stated that “Included in this duty to mitigate is an examination of the steps taken by a corporate respondent to investigate, make findings and impose a resolution.” He then reviewed the evidence in the context of Laskowska, 2005 HRTO 30 (CanLII) where the adjudicator had established a three part test to evaluate an employer’s duty to investigate. Here, the employee had been uncooperative and had refused to provide detailed particulars of her allegations. In the result, the adjudicator concluded that the harassment complaint had not been substantiated.
An employer’s obligation to investigate harassment related issues is considered in section 14:431 of the Illness and Absenteeism manual and its supplement.
In CEFA Systems and others, 2017 BCHRT 53 (CanLII) (Beltgens), the Tribunal refused the employer’s application to have the employee’s pregnancy-related complaint dismissed prior to a formal hearing. The application had been made on the basis that there was no reasonable prospect that the complaint would succeed. In dismissing the employer’s application, the Tribunal commented:
… The Tribunal has … consistently stated that an employer is entitled to make legitimate business decisions while employees are on maternity leave. In Parry v. Vanwest College, 2005 BCHRT 310 (CanLII), the Tribunal stated as follows at Para. 67:
… A workplace is not “frozen” while an employee is away on maternity or parental leave: the employer is entitled to make legitimate business-related decisions[s] which may affect the configuration of the workplace to which the employee returns. In making those decisions, however, the employer must ensure that the employee on leave is not differentially affected by those decisions or left worse off than other employees who were not away on leave.
The issue of accommodation for employees on maternity and parental leave is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
5. An alcoholic employee who failed to comply with imposed monitoring provisions was unsuccessful in a plea for further accommodation, for it was considered to constitute an undue hardship to require the employer to continue accommodating an employee for whom the prospect of success was marginal.
In Canadian Forest Products Ltd., (Isle Pierre Division), 2017 CanLII 10833 (BC LA) (Peltz), the employee was an alcoholic with 22 years of seniority. He was terminated for an alleged breach of a Last Chance Agreement.
In November of 2011, the employee was diagnosed as being alcohol dependent. He entered a residential treatment program and returned to work under a Drug Monitoring Agreement and an associated Last Chance Agreement. The employee suffered a relapse approximately two years later, but by agreement, his employment was continued subject to another Monitoring Agreement and a second Last Chance Agreement.
For a five year period, the [employee] was required to phone the monitoring doctor’s office every assigned work day and attend for alcohol testing when randomly directed to do so. He also agreed to maintain his aftercare plan including abstinence, attendance at Alcoholics Anonymous (AA) meetings, acquiring a sponsor, completing the 12 Steps and participating in an AA group.
The second last chance agreement differed from the first, in that the parties acknowledged that the second agreement was “intended to truly be the last chance” for the employee and that “no other accommodation” would be sought. Failure to abide by the second agreement, “regardless of how minor,” would be just cause for dismissal and would not be grieved. Finally, the employer reserved an “unfettered discretion” to waive a breach of the second agreement without waiving its right to enforce a subsequent breach.
The employee was terminated for non-compliance after he failed to call his doctor’s office on December 31, 2015. His explanation was that he was sick that day and didn’t believe that he was required to call. The arbitrator concluded that the explanation was disingenuous, for the employee had previously called in when sick, and further, that to make an exception for illness would affect the integrity of the monitoring aspect of the agreement.
After interviewing the employee, the doctor reported to the employer that he believed that the employee was no longer invested in his recovery and had not been honest about his participation in the AA program. He had no sponsor and could not articulate the 12 Steps.
The letter terminating the employee referenced the breach of December 31 and a subsequent breach on January 4 and 5 when the employee did not call in on vacation days that had been approved by the employer on short notice. Although not mentioned in the termination letter, the employer contended that the termination was further justified on the basis of the employee’s failure to pursue recovery from his addiction illness as he had promised in the agreements. The employer also relied on the Last Chance Agreement where the parties acknowledged that the employer had already made reasonable accommodation for the employee’s disability and no further accommodation would be sought.
The grievance was dismissed, with the union’s primary assertions addressed as follows:
1. The termination letter did not refer to an alleged breach of the treatment plan. The arbitrator concluded that the employer knew of but failed to include a reference in the letter to the employee’s failure to maintain compliance with his treatment plan. He accepted the union’s argument that the employer must be held to the grounds as set out in the letter.
Arbitrator Peltz stated that the employer was nevertheless entitled to lead evidence in this area, for it could be relevant to several issues, including whether the employer acted unfairly in exercising its right to rely on the strict wording of the agreement; whether there were strong and compelling reasons for the arbitrator to vary the result if a breach was proven; whether the duty to accommodate still applies notwithstanding the wording that no further accommodation would be sought; and whether the employer had accommodated the employee to the point of undue hardship. He commented that none of these issues arise if the employer could not prove its grounds.
2. The last chance agreement was vitiated by waiver or uncertainty, for a failure to rely on the agreement’s provisions, by way of an occasional forbearance or otherwise, may have lulled the employee into a false sense of security. Arbitrator Peltz concluded that the waiver clause included in the second last chance agreement was a complete answer to the union’s waiver argument. In stating that the second agreement had not been vitiated by uncertainty, he commented:
Of course every employer action is subject to an overarching obligation to act lawfully and in good faith, so no power in a last chance agreement is unreviewable. But in the present case, the employer waived past non-compliance for a benevolent purpose – to support the [employee’s] continued recovery, an objective shared by all parties.
3. The monitoring agreement lacked clarity on whether an employee was required to call in when absent because of illness or vacation. The arbitrator found that this assertion was not supported by the evidence.
4. The arbitrator should provide relief against the provisions of the last chance agreement. The arbitrator rejected that contention, for the equities were not in favour of the employee. He was admittedly dishonest with his doctor shortly before his termination. He lied about having an AA sponsor and he had been seriously deficient in following his treatment plan for months before his termination. This was considered to be “egregious behaviour”. In addition, when the employee testified at the hearing, he said that “even today he believes he did nothing wrong. In other words, he takes no personal responsibility for breaching the agreements he signed and blames others for the misfortune that has befallen him. This last observation is perhaps the most concerning. Without an admission, it is hard to see much hope for a future employment relationship.”
Arbitrator Peltz reviewed the authorities regarding an employee’s obligation to facilitate an accommodation. He concluded that the employee had breached his monitoring obligations and effectively abandoned the AA program. He commented that “It is undue hardship for an employer to continue accommodating an employee for whom the prospects of success are marginal.”
The issue of accommodation and undue hardship is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
6. Unless otherwise specified, the term “funeral” as used in a collective agreement is to be given a broad interpretation that encompasses the varying habits, customs and traditions found in a pluralistic society.
In Enterprise Rent-A-Car Canada Co. Canadian Office, 2017 CanLII 5306 (BC LA) (Saunders), the issue was whether the employee was entitled to either one or three days bereavement leave. The clause read:
Leave of absence with pay will be granted to full time regular employees for the following reasons:
(a) In the event of death in an employee’s immediate family (which is defined as grandparents, step-grandparents, parents, step-parents, brother, step-brother, step-sister or sister), the employee shall be entitled to be absent from work for a period of up to but not more than three (3) regular working days through and including the day of the funeral, when such absence is necessary to make arrangement for and attend the funeral. Part time regular employees will receive pay for lost time that occurs on the day of the funeral.
The employee requested but was denied three days bereavement leave following the death of his sister in Somalia. The employer provided three days leave, with pay for the second and third day being charged against the employee’s banked time.
The arbitrator observed that
The [employee’s] religious and cultural traditions dictate that burial occur as soon as possible and not later than 24 hours after death. When distance precludes family from attending the physical burial, the practice is to begin observances at the local place of worship. Those observances are continued throughout the day at the homes of immediate family members. Observances included shared prayer, readings from a religious text as well as shared meals with family and community members at the family home.
That is what happened in the present case. The [employee’s] sister was buried [the day following her death]. The [employee] telephoned members of his community to inform them of his sister’s death and to arrange attendance at the [employee’s home]. The message also spread by word-of-mouth.
During the three days following the sister’s death, “observances were held at the local place of worship …” and continued at the employee’s home. Approximately 150 persons participated in the observances at different times. In that period the employee organized attendance by making phone calls, helped each day with food and attended daily prayers and readings, both at his home and his place of worship.
The arbitrator defined the issue as whether a full three working day absence was “necessary to make arrangements for and to attend the funeral.” He stated that his task was to “give effect to the parties’ mutual intention as disclosed by the language of the collective agreement.”
The arbitrator accepted the employer’s contention that the article was a conditional entitlement:
It does not guarantee three days in every case … the specific condition that must be satisfied to attract payment is that each day of absence be “… necessary to make arrangements for and attend the funeral.”
The union cited Canada Forgings Inc., (2005) 135 L.A.C. (4th) 411 (Stephens) as “authority for the proposition that a funeral is not restricted to observances in the presence of the deceased and is broad enough to encompass a wide range of religious and other cultural traditions.” It submitted that account must be taken of the purpose of bereavement leave.
The union also relied on the dictionary definition of the word “funeral” in the online Merriam Webster Dictionary, where the definition read in part as follows:
“1. The observances held for a dead person usually before burial or cremation.”
The arbitrator stated:
This dictionary definition of “funeral” leads me to three conclusions in this regard. First, a funeral may consist of one or more observances – it is not necessarily confined to one day of observances. Second, the presence of the body of the deceased is not a necessary element of a funeral. Third, the qualification that observances usually precede burial, indicates that they need not precede burial in every case.
The arbitrator also adopted the conclusion of arbitrator Jamieson in Cancoil Thermal Corporation  O.L.A.A. No. 473, 82 C.L.A.S. 214 (Jamieson), where arbitrator Jamieson stated that “for arbitral purposes of bereavement provisions in collective agreements, unless otherwise specified, the term funeral is to be given a broad interpretation that can encompass the varying habits, customs and traditions in our pluralistic society.”
The grievance was allowed.
Issues involving leaves of absence and bereavement leave are considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.
In Alberta Health Services, 2017 CanLII 20793 (AB GAA) (Wallace), the employee grieved a written warning that was imposed for having called to report her pending lateness 20 minutes after the start of her nursing shift. She eventually arrived 1 ½ hours late.
The employee learned, 15 minutes prior to the start of her shift that her childcare provider was ill and would not be able to care for her children. She immediately attempted to secure alternate care but was not successful. She then telephoned her employer, 20 minutes after the start of her shift, to advise that she would be late.
The union did not dispute the facts but simply took the position that the matter did not involve culpable conduct on the part of the employee. The arbitrator commented that he approached the matter on the basis that the discipline stands or falls on whether the evidence discloses any culpable conduct:
I accept the employer’s submission that as a written warning is the lowest form of discipline contemplated by … the collective agreement, there can be no issue of whether the discipline is disproportionate to the offence and it is appropriate to substitute a lesser penalty. Either the facts disclose culpable misconduct, in which case the written warning must stand, or there is no culpable misconduct and the warning must be removed from the [employee’s] record.
The arbitrator found that there was no basis to conclude that the employee’s lateness was culpable misconduct, stating that “if the only basis for the Letter of Discipline were the lateness itself, I would not hesitate to vacate the discipline.”
The employee had however acted improperly when she failed to advise her employer of her pending lateness at the earliest possible opportunity, for the lack of timely notification created issues for the employer. Her conduct was considered culpable and capable of supporting “this lowest form of discipline.”
The issue of lateness is considered in Chapter 17 of the Illness and Absenteeism manual and its supplement. This case should not be taken to mean that lateness is not a disciplinable offence, for discipline has frequently been upheld in cases involving employee lateness.
In Humber River Hospital, 2017 CanLII 13809 (ON LA) (McNamee), the employee was terminated for having violated the confidentiality of patient records.
In reinstating the employee without compensation, the arbitrator summarized the employee’s wrongdoing in the following terms:
The [employee’s] motivation in carrying out his research [into the wrongdoing of other nurses] is thus of some considerable importance in determining the appropriateness of the discipline imposed. Unfortunately for the [employee], I am unable to accept his testimony in that regard. Rather it is my view that the [employee], perhaps piqued by a criticism of his charting practice that he considered to be unjustified, was attempting to go much further and attempting to justify his behaviour by reference to the mistakes and actions of others.
By being reinstated without compensation, the employee essentially served a 22 month unpaid suspension.
Privacy issues are considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.