llness and Absenteeism.com - Summer 2019 Newsletter
In this edition, you will find:
A. Featured Case: The termination of an employee for alleged fraudulent use of sick leave was upheld where the employee had travelled to a vacation destination after her doctor had, at her request, authorized two days of absence to rest from a minor injury. The arbitrator distinguished this case from one where the employee was acting pursuant to an honestly held belief that she was unable to work on the days in question. [Click here]
B. Recent Decisions of General Interest
1. The termination of an employee with 21 years of service was upheld where the employee had violated the employer’s privacy and security policy. The employer’s failure to have a union representative present when the employee was being interviewed, as required by the terms of the collective agreement, did not result in the termination being considered to be void. [Click here]
2. An employer was unsuccessful in resisting production of documents on the grounds of solicitor-client privilege and/or labour relations privilege because the evidence that was tendered did not bring the documents within the common law test set forth in Wigmore. [Click here]
3. An employer was not justified in terminating an employee for failing to respond to an offer of accommodation where the employee’s medical disability compromised his ability to accept what was found to be a reasonable accommodation. The employee, who had been employed as an Occupational Health Officer, in pay grade 10, was to be accommodated in a cleaner position at pay grade 1. [Click here]
4. A grievance seeking benefit plan coverage for medical marijuana was dismissed on the ground that the plan reference in the collective agreement merely obligated the employer to pay the premium costs for the employee benefit plan. [Click here]
5. An employee who had been terminated for failure to substantiate his absence from work was reinstated two years later. Given his continuing medical condition, he was to be placed on unpaid leave of absence until he provided medical documentation that cleared him to return to work. The employee was denied back pay but was entitled to claim any disability benefits to which he might otherwise have been entitled. [Click here]
A. Featured Case: The termination of an employee for alleged fraudulent use of sick leave was upheld where the employee had travelled to a vacation destination after her doctor had, at her request, authorized two days of absence to rest from a minor injury. The arbitrator distinguished this case from one where the employee was acting pursuant to an honestly held belief that she was unable to work on the days in question.
In Toronto (City), 2017 CanLII 79512 (ON LA) (Sheehan), the employee grieved that she had been improperly terminated for alleged fraudulent use of sick leave.
The employee reported that her vehicle had been rear-ended while she was on her way to work on the Thursday morning. She normally worked a ten hour day shift from Tuesday to Friday.
The employee testified that she attended with her doctor that morning at his walk-in clinic, where she reported that she was suffering a sore neck due to the accident. At the employee’s request, her doctor provided her with a generic “note” suggesting that she take two days (the Thursday and Friday) off work. She was proscribed an anti-inflammatory and was directed to undergo an x-ray. The employee was advised to limit her activities to modified duties, which were said largely to be ‘sitting in the lunchroom’, with occasional requirements to do some driving.
The employee testified that she telephoned her father in Jamaica that Thursday afternoon and he suggested that she come down “to chill out”. She stated that she began to make travel arrangements that evening and by the next morning, she was able to travel to Jamaica. She posted two photographs of her trip on Instagram, with one being a “selfie” of her and her luggage as she left Toronto, and the other of the sunset that evening at her accommodation in Jamaica. By the Monday, the employer had obtained a series of “screenshots” of photos from the employee’s Instagram account. The employee’s Instagram commentary and her subsequent testimony revealed that she had become extremely intoxicated on the Sunday. She testified that she had not taken the anti-inflammatory medication that her doctor had prescribed because she knew that “alcohol and drugs” were not necessarily a good mixture.
The employee reported for work at the start of her Tuesday shift. She met with her employer and her union representative, at which time she openly acknowledged that she had been in Jamaica over the weekend. She stated that the purpose of her trip was in furtherance of her doctor’s recommendation that she rest. She apologized if it appeared that she had misused her sick leave, for that had not been her intent. Her employer then advised her that she was being terminated for fraudulent use of sick leave.
The employee’s doctor, who was involved in separate disciplinary proceedings with his governing body, failed to attend the hearing in response to the subpoena that the union had served on him.
The arbitrator commented that given the photos and the fact that the employee had reported to work, without qualification, on the Tuesday, the employer had justification to question the employee’s behaviour, “as it raised a legitimate presumption of misconduct on her part.” Given the reasonable suspicion that arose from this conduct in terms of the bona fides of her sick leave claim, “it was incumbent on the union and the employee … to advance sufficient evidence to rebut the reasonable inference that her actions were deceitful in nature.” He stated however that:
Not every situation of an employer claiming that an employee has undertaken activities inconsistent with a purported injury or illness that supposedly prevented the employee from working, will give rise to the evidentiary onus shifting to the union to put forward evidence to rebut the presumption that the [employee] took part in misconduct. There are, however, circumstances, such as in the case at hand, where the nature of [the] evidence submitted by the employer so clearly gives rise to a supposition of potential misconduct that it is incumbent that an exculpatory or, at a minimum, a clarifying evidentiary response needs to be provided.
The arbitrator reviewed all of the underlying circumstances, and then distinguished this case from others where the employee was acting pursuant to an honestly held belief that she was not able to work on the days in question. He stated in part:
The [employee’s] own actions significantly undercut her claim that she had an honestly held believe that she was incapable of performing the modified duties that she was expected to perform. Specifically, within less than 24 hours of receiving the medical note, the [employee] was taking a four hour flight to Jamaica. [There was no credible evidence that the employee’s] purported neck injury prevented her from working.
The arbitrator concluded that “on a balance of probabilities test, there is clear and cogent evidence indicating that the [employee] intentionally claimed sick leave on those days under false pretenses, as she sought the days off from work, so she could travel to Jamaica to enjoy a short vacation.”
The arbitrator stated that there were no compelling mitigating factors that would argue for a lesser penalty than the termination that had been imposed. He cited Ineos Nova Ltd., (2010) 193 L.A.C. (4th) 241 (Sheehan) as an illustration of the principal that “sick leave fraud constitutes serious misconduct”:
Arbitrators now generally accept that a single act of dishonesty does not necessarily warrant termination, absent express wording to that effect in the collective agreement. However, the nature of the offence committed by the [employee] and the particular facts of this case weigh heavily in support of the employer’s position that the penalty of termination should be upheld. Offences associated with dishonesty, including sick leave fraud, strike at the heart of the trust necessary in the employment relationship and have traditionally been viewed by arbitrators as constituting very serious misconduct. This view was captured succinctly by arbitrator Brown in Re American Motors (Canada) … (1985), 21 L.A.C. (3d) 161 (Brown). That case involved an employee who claimed sick leave while he was employed elsewhere. In upholding the penalty of termination, despite the employee’s 24 years of service, arbitrator Brown commented on the nature of the offence committed by the employee:
These circumstances are analogous to those which deal with theft of property and immoral conduct, conduct which is recognized as being inconsistent with continuation of the employment relationship. There cannot be a clearer factual case than the present matter to establish an employee’s conduct has been inimical to the continuation of the employment relationship.
The termination was upheld.
The issue of fraudulent use of sick leave is considered in sections 2:401 and 17:202of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. The termination of an employee with 21 years of service was upheld where the employee had violated the employer’s privacy and security policy. The employer’s failure to have a union representative present when the employee was being interviewed, as per the terms of the collective agreement, did not result in the termination being considered to be void.
In Saskatchewan Crop Insurance Corporation, 2017 CanLII 46860 (SK LA) (Wallace), the employee was terminated from her position as a Customer Service Representative, with the reasons given being a breach of the Employer’s Privacy and Security Policy, dishonesty throughout the interview process and the employee’s failure to provide a reasonable explanation as to how the breaches occurred. The matter was heard as a grievance under the collective agreement.
The collective agreement contained a union representation clause which stated that where an employee was to be interviewed for disciplinary purposes, the employee was to be advised of the purpose of the interview and of her right to have a union representative present. The clause was silent as to any consequences that might flow from its breach.
The circumstances that led to the alleged breach of the employer’s Privacy and Security policy involved an employee having entered at least three incorrect passwords on another employee’s computer account, with the result being that the system then prevented any further access to the account. The employer had reason to suspect the employee who it interviewed and ultimately disciplined. While the employee was entitled to have a representative present, the arbitrator stated that the clause did not go so far as to stipulate that the employee was entitled to her choice of union representative.
The union contended that the employer’s failure to provide the employee with advance notice of the meeting’s purpose should have resulted in the discipline being void.
The arbitrator noted that there was no question of bad faith on the part of the employer, and that the purposes of the clause had been met. There was no evidence of the employer having routinely breached the clause, the employer did not intend that the meeting would lead to discipline, and the employer did not attempt to mislead or trick the employee. It was clear from the outset of the meeting that its purpose was to ascertain who had attempted to gain improper access to the computer in question.
The arbitrator stated that she was satisfied that the outcome of the meeting would not have been different if the employee had been advised, in advance of the meeting, what it was that the employer wanted to speak to her about. The employee had not suffered any damage as a result of the breach and accordingly, the appropriate remedy was to be limited to a declaration that a breach had occurred.
It was agreed that the employee had made the unauthorized attempts at entry, that she had lied to the employer during the investigation process, and that some discipline was warranted. The arbitrator found that the employee’s attempts to justify what she did and to justify lying about it carried forward into the hearing. The reasons given for lying were self-serving in that she was found to be lying to avoid discipline rather than for the reasons that she had advanced.
The employee had a clean discipline record during her 21 years of employment. The union alleged that the work environment was toxic. While it was acknowledged that there were times in which the office had been in turmoil, there was no evidence that the employee’s improper conduct had been provoked by those circumstances.
The arbitrator upheld the termination, for the employee had lost the trust of her co-workers as a result of her breaches related to their privacy, and had lost the trust of her employer because of the privacy breach and her subsequent lying about it. The arbitrator stated:
The breach of policy, the lies, the explanations, and the lack of real remorse or acceptance of responsibility confirm the Employer’s conclusion that the employment relationship and the trust between [the employer and employee] are irreparable.
The grievance was dismissed.
The issue of privacy is addressed in Chapter 1of the Illness and Absenteeism manual and its supplement.
2. An employer was unsuccessful in resisting production of documents on the grounds of solicitor-client privilege and/or labour relations privilege because the evidence that was tendered did not bring the documents within the common law test set forth in Wigmore.
In BC Ministry of Forests, Lands and Natural Resource Operations, 2017 BCHRT 104 (CanLII) (McCreary), the complainant, whose offer of employment had been revoked, sought disclosure of documents that were in the possession of the prospective employer. The prospective employer responded that certain documents did not exist, that certain documents had been redacted on the ground of privilege, and that certain documents would not be disclosed because they were not relevant to the complaint. The prospective employer asserted that “solicitor-client privilege” applied with respect to its communications with legal counsel in the Ministry of Justice and that “labour relations privilege” applied to communications between its officials leading up to its decision to revoke the offer of employment that had been made to the prospective employee.
The adjudicator ordered disclosure of the sought-after documents other than those protected by solicitor-client privilege. In doing so, she stated:
The Respondents have not convinced me that the Wigmore tests are met such as the documents requested by [the prospective employer] are protected by privilege and should not be disclosed. There was no evidence that the communications originated in a confidence that they would not be disclosed. Likewise, no evidence was tendered that the elements of confidentiality are essential to the full and satisfactory maintenance of the relation between the parties, which relationship was not described except that the affiants [i.e. the deponents] were co-workers … [There] was nothing on which I could base a conclusion that the relationship is one which in the opinion of the community ought to be sedulously fostered.
… With the exception of [any] consultation with legal counsel at the Ministry of Justice, the documents sought … are not protected by privilege. The documents are arguably relevant and fairness requires disclosure before the [prospective employee] responds to the Respondent’s application to dismiss the complaint.
The issue of privilege is considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
3. An employer was not justified in terminating an employee for failing to respond to an offer of accommodation where the employee’s medical disability compromised his ability to accept what was found to be a reasonable accommodation. The employee, who had been employed as an Occupational Health Officer, in pay grade 10, was to be accommodated in a cleaner position at pay grade 1.
In Saskatchewan (Labour Relations and Workplace Safety), 2017 CanLII 89165 (SK LA) (Ish), the employee had been terminated on the grounds that he failed to respond to a reasonable offer to accommodate his disability. In his grievance, the union alleged that the employee had been denied access to outstanding sick leave entitlements while being totally disabled and unable to work. It sought, by way of remedy, reinstatement to the employee’s previous position, use of sick leave entitlements to retain salary and benefits, a leave of absence from the employee’s position and rescission of the “employer-driven resignation.”
The employee had been employed in various non-unionized positions with the Government of Saskatchewan during the period from 1975 to 1992. His out-of-scope position was abolished in 2001, and at that time, he received and signed-off on a severance package covering those years. From that point onward until April 26, 2016 he was employed, as a full-time Occupational Health Officer.
A physician assessment completed in June of 2015 stated that the employee had a history of acquired brain injury from 10 years prior that imposed some limitations on his ability to perform the duties of his position. No restrictions were identified but the physician did indicate that additional training and time to learn new systems would be required. A follow-up evaluation was recommended after a four month period.
A further evaluation conducted by the employee’s physician in October 2015 noted functional limitations in the following cognitive areas: attention to detail, retention of information, concentration and analytical thinking. The assessment advised that it was difficult to determine if there was potential for improvement. Challenges noted included difficulty following mental tasking procedures, learning new procedures and difficulty with subjective memory.
The employer’s management reviewed the medical restrictions with the employee, at which time it advised him that the cognitive restrictions that had been outlined were critical in the employee’s position, and that an accommodation would therefore have to be sought. To help determine an appropriate accommodation, the employee was to undergo a skills assessment. The employee was placed on an administrative leave with pay while an accommodation was being sought.
A further medical assessment advised that the employee was not fit to perform the functions of an Occupational Health Officer, and it recommended that he not be permitted to drive government vehicles. The employee was referred to Saskatchewan Government Insurance for a driving assessment.
The employer then met with the employee and his union representative, at which time the employer advised that it would be looking at jobs from levels one through four, and that the employee would be paid at the level of the job into which he was ultimately placed. At that time, the employee was being paid at a level 10 pay grade.
The employer subsequently advised, by email, that it had identified a Level 1 cleaner position and it stated that a response was required by a stipulated date. The position was a nine month temporary position and during that period, the employer would continue to look for other suitable positions. No response was forthcoming. The employee instead presented a medical “note” from his doctor stating that he was unable to work for medical reasons during a four week period beginning on April 18, 2016.
The employer advised that the medical note was not sufficient to support the payment of sick leave benefits. It extended the employee’s time to respond to the offer of the cleaning position by several days. In the interim, the union provided a more detailed medical report. The physician reiterated the employee’s inability to work for that same four week period, stating that the employee was experiencing anxiety and showing signs of depression, that he was having difficulty focusing on the task at hand, and that he was unable to report to work at that time
When the offer was not accepted, the employee was advised that he was considered to have resigned his employment.
Subsequent to the termination, the employer was provided with a medical report advising that the employee had been successful in his driving assessment and that subject to an annual review, there was no prohibition regarding his ability to drive.
The arbitrator characterized the underlying disability that the employee had been experiencing at the outset of the process as the “primary disability”, and the illness that surfaced in April 2016 (causing anxiety, depression and lack of focus) as the “secondary illness.” He stated that he was faced with three issues; did the employer accommodate the employee’s primary disability: and if it had, was the employee’s dismissal (for failure to respond) justified “in the face of medical evidence that suggested his ability to make an informed and rational decision to accept an accommodation, albeit a reasonable one, was compromised.” The third issue related to remedy if the union was successful on either of the first two issues.
The arbitrator stated that the cleaning position that was offered to the employee was a reasonable accommodation at the time given the employee’s functional limitations caused by his disability. “If nothing had changed regarding the [employee’s] medical condition and he declined this offer, I would have no hesitation in concluding the employer met its obligation under the duty to accommodate and would not be required to look for more positions for [the employee]. However, [the employee’s] medical condition did change.”
… the employer was not justified in terminating the [employee] for failing to respond to the offer of accommodation because it was made aware, by [the recently received] medical certificates, that the [employee] was having a very difficult time because of mental health issues. These difficulties were distinct from the primary disability of cognitive function problems that were being dealt with throughout the entire accommodation process. Prior to this time, there was no evidence to suggest that the [employee] was anxious or had difficulty making decisions.”
The arbitrator ordered that the “employer-driven resignation be rescinded, and that the employee be provided with sick leave pay, at the Level 1 pay rate, for a period as agreed upon by the parties. Jurisdiction was retained to deal with associated and related matters.
The matter of accommodation, including the respective obligations of all parties, is thoroughly considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
4. A grievance seeking benefit plan coverage for medical marijuana was dismissed on the ground that the plan reference in the collective agreement merely obligated the employer to pay the premium costs for the employee benefit plan.
In CIBC, 2017 CanLII 76019 (ON LA) (Parmar), the employee’s health care benefit plan claim for medical marijuana was denied by the insurer on the basis that it did not have a DIN (Drug Identification Number) assigned by Health Canada.
The arbitrator first considered the issue of jurisdiction, and proceeded to determine which category the plan fell into. The plan itself merely obligated the employer to “make premium contributions under the Flexible Benefits Program.”
The arbitrator noted that the issue of jurisdiction was dependent on which of the following categories that the plan fell into:
i) The plan or policy is not mentioned in the agreement;
ii) The collective agreement specifically provides for certain benefits;
iii) The collective agreement only provides for payment of premiums for the benefit plan;
iv) Specific plans or policies are incorporated into the collective agreement.
Arbitrator Parmar stated that “arbitrators generally have declined jurisdiction in situations which fall into the first or third category, and have taken jurisdiction over disputes in situations which fall in the second and fourth category (see Cambridge Memorial Hospital and Ontario Nurses Association (unreported November 1, 2011) (Monteith).”
By providing only for payment of premiums for a benefit plan, this collective agreement fell into the third category. The arbitrator stated that “the clearest indicator that these parties did not intend for disputes arising from the interpretation or implementation of the Benefit Plan to be arbitral is set forth in the collective agreement where it is expressly stated that all matters relating to eligibility “for or within the interpretation of the benefit plans” is to be determined “solely by the insurers.”
The grievance was dismissed.
5. An employee who had been terminated for failure to substantiate his absence from work was reinstated two years later. Given his continuing medical condition, he was to be placed on unpaid leave of absence until he provided medical documentation that cleared him to return to work. The employee was denied back pay but was entitled to claim any disability benefits to which he might otherwise have been entitled.
In Qualtech Seating Systems division of Magna International Inc., 2017 CanLII 49073 (ON LA) (Slotnick), the employee had been terminated for failure to provide medical information to substantiate an absence from work.
The employer, a manufacturer of auto parts, operated on a “just-in-time” basis. There was no dispute that attendance was critical in such an environment.
At the time of his discharge, the employee had a lengthy record of discipline. In the 2 1/2 years prior to his discharge, he had been counselled about his excessive absenteeism and his failure to support an illness-related absence with documentation; he had received a verbal warning for unprofessional conduct, including hanging up the telephone on a human resources employee; he had received a one day suspension for having violated a policy against having cellular telephones on the plant floor and running in the plant after he received a call that his wife was in labour; he had received a five day suspension (later reduced to three days) for failing to report an injury to a previously injured hand; and a five day suspension for not providing sufficient support for an illness-related absence.
The employer’s attendance policy provided that culpable absences would be dealt with through progressive discipline. The policy provided that a culpable absence included “failure to provide a doctor’s note when the employee has been previously notified that a doctor’s note will be required. This includes any absence of more than three days.”
The employee had been stabbed in a workplace incident. He was cleared to return to work with restrictions. However, the employer advised that it was unable to accommodate his restrictions. His short term disability benefits were approved to a future date on the condition that updated medical information would continue to be provided during the interim.
The employer later sought additional information, and stipulated that it be provided by a specified date. The employee was terminated when the information was not received by that date. At the time of the termination, the employer was aware that the employee was seeking an extension of his short-term disability benefits and that the employee’s psychotherapist was recommending a leave of absence and had provided a detailed report to the employer’s third party claims adjudicator.
In the circumstances, the employee’s failure to provide the required information to his employer could not be considered to be misconduct.
Arbitrator Slotnick commented that while “the employee’s testimony at the hearing contained numerous patently untrue statements and sweeping generalizations”, he would not draw the conclusion that the employee was deliberately intending to mislead, given that his doctor had assessed him as having “acute and chronic structural PTSD.”
The employee was reinstated as of the date of his termination some two years earlier. However, the medical evidence established that during the two years that followed, the employee had not been able to work in a safety sensitive workplace such as in an auto parts plant. Consequently, he was denied back pay but was entitled to claim any disability benefits to which he might be entitled.
The employee was not medically able to return to work. The arbitrator directed that once the employee was reinstated, “he will be on unpaid leave of absence until he provides medical documentation that clears him to return to work, with or without restrictions.” He was to cooperate “with any reasonable request for further information by the company. Should the company question his medical clearance, it will be entitled to seek an independent medical examination, paid for by the company, with an examiner to be agreed jointly by the union and the company. All previous discipline will remain on [the employee’s] record pursuant to the sunset clause in the collective agreement.”
The requirement for employees to provide medical information to establish an illness is considered in Chapters 5, 6 and 7 of the Illness and Absenteeism manual and its supplement.