llness and Absenteeism.com - February 2018 Newsletter

In this edition, you will find:

 

A.  Featured Case:    An employer is not required to involve a union in all decisions involving employee accommodation. In the absence of an employee having elected union representation, it is not necessary that the union be permitted to participate in all meetings related to an employee’s accommodation nor is it necessary that the union receive copies of all relevant correspondence. The union’s right to participate may be limited to situations where a provision in a collective agreement is standing in the way of a reasonable accommodation.    [Click here]

B. Recent Decisions of General Interest

1. An employer may be ordered to produce audited financial statements where it has alleged that its financial performance and its need for cost cutting were among the factors that led to a decision to end an employee’s employment.    [Click here]

2. An issue regarding an employee’s entitlement to disability benefits is not a basis to support an allegation of discrimination on the basis of disability. As such, it does not fall within a human rights tribunal’s jurisdiction to determine.     [Click here]

3. A party who has been ordered to produce relevant documents must produce all such documents that are within “the party’s possession, power or control”.    [Click here]

4. The placement of an employee in an employer’s attendance management program will generally be insufficient to establish a claim of discrimination.    [Click here]

5. An employer was ordered to pay an employee $25,000 where the employee had been subjected to a vexatious or poisoned workplace attributable to harassment by fellow employees.    [Click here]

6. A distant witness in a human rights proceeding may be permitted to testify by telephone where the opposing party is unable to substantiate that it would be substantially prejudiced if such testimony was given.    [Click here]

7. An employee  returning from a maternity or parental leave was not necessarily entitled to return to the employment situation that existed prior to the leave.    [Click here]

 


 A.  Featured Case: An employer is not required to involve a union in all decisions involving employee accommodation. In the absence of an employee having elected union representation, it is not necessary that the union be permitted to participate in all meetings related to an employee’s accommodation nor is it necessary that the union receive copies of all relevant correspondence. The union’s right to participate may be limited to situations where a provision in a collective agreement is standing in the way of a reasonable accommodation.  

In Ontario, 2017 CanLII 34019 (ON LA) (Dissanayake), the parties had formulated nine questions that they asked the arbitrator to consider in addressing the union’s policy grievance regarding the right of the union to fully participate in various aspects of the accommodation process. In considering those questions, the arbitrator conducted an extensive review of earlier decisions that had addressed this issue.

The Board finds that the reasoning in the Supreme Court and Court of Appeal decisions in Telus Communications Inc. persuasive as to the extent of a union’s rights and responsibilities in the accommodation/return to work process as set out in Renaud. The Board further concludes that the awards in Re Commercial Bakeries and Re City of Toronto are not inconsistent with Renaud. They turned on their own facts, and do not support the extremely broad rights the union claims here. While the union has a very important role to play in the processes in certain circumstances, it is not an equal partner with the employer, with “a right to participate in all aspects of accommodation/return to work from beginning to end” as it claims.

Article 30 of the collective agreement stipulated that where an employer representative intended to meet with an employee regarding matters related to the development, implementation and administration of an accommodation or return to work plan, the employee had the right to be accompanied by and represented by a union representative.

In answering the questions that had been asked, the Board (i.e. the arbitrator) set forth the following statements of law:

1. There is nothing in the external law or the collective agreement that restricts management’s right to develop the process and protocol for accommodation and return to work. If the process and protocol as developed is not consistent with the employer’s legal or collective agreement obligations, then the employer would be exposed to legal liability.

2. An employee’s health information and the interaction between an employee and his/her treating medical professionals are by its very nature private and confidential. The union is only entitled to access this information where the employee has opted for union representation in accordance with the provisions of the collective agreement.

3.  A union is entitled to, and in fact is obligated to develop employment accommodation and return to work plans but only where it involves a discriminatory provision in the collective agreement to which it is party, or where the proposed plan may impact on a collective agreement right of the employee in question or some other employee or employees. In these situations the employer, as well as the union, have legal duties and responsibilities. Therefore the union is also entitled to participate. In other cases, the union may participate only where the employee has opted for union representation.

4. The union has the right to be involved in the search for accommodation solutions where the search involves a discriminatory collective agreement provision or impacts on a collective agreement right of the employee in question or some other employee or employees or the employee has opted for union representation pursuant to the collective agreement entitlement. In addition, where the employer has not been able to find an accommodation, it has the obligation to involve the union before concluding that no accommodation is possible and shutting down the search process. This is required to enable the union to fulfil its legal obligation by considering whether a reasonable accommodation short of undue hardship to itself, other employees and the employer may be devised by altering or waiving a provision of the collective agreement. Where that is possible, the union has an obligation to proactively pursue that possibility.

5. The union does not generally have a right to participate in developing a protocol for assessing minimal qualifications or comparing limitations/restrictions to job demands. However, where the employer has concluded that no reasonable accommodation short of undue hardship is available, and the union has been consulted in accordance with the comments set forth in the previous paragraph, the union would be entitled to propose waiving or altering any collective agreement right, including any that may impact upon assessing minimal qualifications or comparing limitations/restrictions to job demands.

6. Any right that the union has to participate in the accommodation and return to work process does not extend to the right to participate in the development of employee accommodation/return to work policies or procedures.

7. In the absence of an election by an employee for union representation, it is not mandatory that the union participate in all meetings or that it receive copies of all relevant correspondence. The union has no right to participate any time an accommodation is proposed. Its participation is limited to situations where a provision in the collective agreement is standing in the way of a reasonable accommodation.

8. Where the union’s involvement is required due to some provision in the agreement coming into play during the employer’s efforts to accommodate, or the employee has opted for union representation, the participatory rights of the union that flow from that will oblige the employer to involve the union, which would include communicating with and informing the union of developments.

The foregoing comments regarding instances where an employee has opted for representation pursuant to the provisions of the collective agreement should not be limited to instances where the collective agreement explicitly contains such an entitlement. The better approach would be for an employer to proceed as though the collective agreement and/or the arbitral law contained an implied  right for an employee to opt for union representation in dealing with matters related to his or her accommodation, and that any request for union representation is considered in the context of such an implied right.

The requirement to consult with the union in matters of accommodation is considered in s. 14:601 of the Illness and Absenteeism manual and its’ Supplement.

 


B.     Recent Decisions of General Interest

1. An employer may be ordered to produce audited financial statements where it has alleged that its financial performance and its need for cost cutting were among the factors that led to a decision to end an employee’s employment.  

In Benson Group Inc., 2016 HRTO 1240 (CanLII) (Khurana), the employee sought production of the employer’s complete audited financial statements for the past eight years. In ordering production for the last four of the eight years sought, the adjudicator stated:

At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns … The requesting party has the onus of establishing that [the] documents are arguably relevant. While “arguable relevance” may not be a high onus, there must be a link between the materials that are sought and the allegations made in the application. A link may be established if the information requested could be used to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence.

Here, the employer alleged that its financial performance and need for cost-cutting were among the factors that led to the decision to end the employee’s employment. The adjudicator found that the audited financial statements were directly relevant to the employer’s defence and were to be produced.

The issue of production of documents and the consequences for failure to comply with a Production Order are  considered in s. 10:200 of the Illness and Absenteeism manual and its’ Supplement.

 


2. An issue regarding an employee’s entitlement to disability benefits is not a basis to support an allegation of discrimination on the basis of disability. As such, it does not fall within a human rights tribunal’s jurisdiction to determine.    

In Ford Motor Company of Canada Limited, 2016 HRTO 1189 (CanLII) (Hart), the Ontario Human Rights Commission considered a summary application by the employer to dismiss a complaint which alleged that the insurer had discriminated when it discontinued an employee’s disability benefits. The employee’s complaint was dismissed, with the adjudicator stating:

As stated by this Tribunal in Mattthews v. Chrysler Canada Ltd., 2011 HRTO 1939 (CanLII) at para. 18:

… the application of benefit plans necessarily involves decisions regarding eligibility for benefits, which will often be related to a claimant’s disability. The fact that a claimant has a disability related to his claim does not make an administrator’s decision to deny benefits or seek additional medical information discriminatory. Neither does the Tribunal have jurisdiction to determine whether decisions made under a benefit plan are correct … While I appreciate the [employee’s] position that it was unfair to him for his extended disability benefits to have been interrupted for a four and a half month period and his assertion that his doctor did not tell [the insurer] anything to [later] cause his benefits to be reinstated, that is not a basis to support an allegation of discrimination because of disability in violation of the Code. Rather, that is a challenge to the correctness of [the insurer’s] decision that the medical documentation did not support continued eligibility for extended disability benefits, which has been determined not to be within the Tribunal’s jurisdiction.

In his submission, the employee alleged that the discrimination arose because he was suffering from a mental rather than a physical disability. He was unable to point to any specific basis for his assertion other than his own speculation that this was the reason that the insurer had not accepted the medical documentation he had initially provided. In dismissing that contention, the adjudicator stated that the employee’s assertion represented “a bare allegation that [was] not supported by any specific basis in the material before [the adjudicator] and [was] thereby insufficient to establish a reasonable prospect of success on this issue …”

Issues regarding the establishment of a discriminatory condition are considered in s. 14:320 of the Illness and Absenteeism manual and its’ Supplement.

 


  3. A party who has been ordered to produce relevant documents must produce all such documents that are within “the party’s possession, power or control”.   

In Windigo Catering Limited Partnership, 2016 HRTO 1343 (CanLII) (Pickel), the employer sought to have the employee’s complaint dismissed as an abuse of process because the employee had failed to provide the documents that she had been ordered to provide in a previous interim decision [2016 HRTO 324 (CanLII)]. Counsel for the employee responded that the employee had complied with the production order in that she did not have any of the requested documents in her possession.

The adjudicator stated that when the Tribunal orders a party to produce documents, it is ordering that party to produce “the documents which fall within the scope of the production order that are within that party’s possession, power or control.” In this case, the documents being sought (medical records relied upon to receive Employment Insurance and T4’s or underlying income records for the relevant tax year along with medical records provided to the health nurse for the previous employer) were reasonably within the employee’s control and must be produced.

The adjudicator stated that it was not appropriate to dismiss the Application as an abuse of process at this stage. She further stated:

… any further unexplained failure by the [employee] to access documents that are reasonably within her control may amount to an abuse of process. At the very least, such an unexplained failure may be grounds for an adverse inference against the [employee]. Moreover, some of the documents … may be directly relevant to the [employee’s] ability to make out her claim for lost wages.

The employee was given a further 14 days to produce the sought after documents. She was directed to explain any further failure to produce and to specifically identify the further steps that she had taken to obtain such documents.

The scope of an order to produce documents is addressed in Chapter 10 of the Illness and Absenteeism manual and its’ supplement.

 


 4. The placement of an employee in an employer’s attendance management program will generally be insufficient to establish a claim of discrimination.  

In Ontario (Community Safety and Correctional Services), 2016 HRTO 1306 (CanLII) (Scott), the adjudicator determined that the mere fact that an employee was placed in the employer’s attendance management program was insufficient to establish a claim of discrimination. She stated:

In general, the Code does not prohibit an employer from placing an employee in an attendance management program where the intention is to assist the employee in maintaining regular attendance and where the employer is otherwise fulfilling its duty to accommodate disability-related absences … in accordance with the Code.

The placement of an employee on an attendance management program is discussed in s. 17:300 of the Illness and Absenteeism manual and its’ Supplement.

 


 5. An employer was ordered to pay an employee $25,000 where the employee had been subjected to a vexatious or poisoned workplace attributable to harassment by fellow employees.   

In Massiv Automated Systems, 2016 HRTO 1324 (CanLII) (Letheren), the employee alleged that he had experienced discrimination and harassment in employment on the basis of race and sexual orientation contrary to the provisions of the Ontario Human Rights Code.

The two offending employees were fellow workers of the complaining employee and all three worked in the employer’s fabrication department. The adjudicator ultimately concluded that either one or both of the two alleged harassers barred the employee from accessing the tools he needed, hid the “cut lists” and called the employee “crazy.” The two harassers repeatedly subjected the employee to “gay taunts.” The employee complained to his supervisor but no action was taken, with the supervisor’s explanation being that he considered the comments to be “shop talk and jokes.”

The adjudicator concluded that while the employee was treated as alleged, the evidence was insufficient to establish that the treatment was connected to the employee’s race. The evidence was however sufficient to establish that the employee had been harassed on the basis of comments made related to the employee’s suggested sexual orientation. The adjudicator cited jurisprudence that established that it is not necessary that the complaining employee “actually have the characteristics of a person” who falls within a protected ground. What is relevant is the impact of the harassment and the fact that the harasser created an environment that denied the applicant of his dignity and right to equal participation in the workplace,”

The adjudicator found that the comments complained of constituted sexual harassment, and that the offending employees and the employer knew that such comments were unwelcome. The comments and behaviour created a poisoned work environment for the employee. The adjudicator cited Domglass Inc. (No. 2) (1992), 17 C.H.R.R. D/216 in support of the proposition that a workplace may become poisoned where vexatious and unwelcome comments pervade the workplace:

It is now beyond question that the atmosphere in which an employee must work is a condition of his or her employment, and should that atmosphere be oppressive or “poisoned” for a minority group, that circumstance might amount to discrimination on a prohibited basis. Management personnel who know, or who ought to know, of that condition but permit it to continue thereby discriminate against the affected employees even if they are not themselves actively engaged in the production of that atmosphere. Where such discrimination is based upon a prohibited ground it is caught by the Code.

The adjudicator commented that management did not fulfil its responsibility to properly educate its employees that harassment of this nature was prohibited, and it failed to properly consider and investigate the concerns raised by the employee. It breached its duty to provide the employee with a workplace free of discrimination and harassment.

The adjudicator stated that “recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards for an applicant ranging from $12,000 to $150,000.” Thirteen awards were cited. The adjudicator determined, on the facts of this case, that $25,000 would be an appropriate award as monetary compensation for injury to the employee’s dignity, feelings and self-respect. The employer was also directed to provide employees and management with training regarding Code obligations, obligations under the employer’s Harassment and Discrimination policy and related internal complaint procedures.

The quantum of damages awarded to an employee who was subjected to a poisoned work environment is considered in section 14:700 of the Illness and Absenteeism manual and its’ Supplement.

 


 6. A distant witness in a human rights proceeding may be permitted to testify by telephone where the opposing party is unable to substantiate that it would be substantially prejudiced if such testimony was given.   

In Stratford Police Service, 2016 HRTO 1301 (CanLII) (Kershaw), the employee sought to have a treating physiotherapist testify by teleconference. The physiotherapist had relocated from one city to another within Ontario.

The employer objected on the basis that such action would deprive it of a fair opportunity to cross-examine the physiotherapist on a crucial incident in which it alleged that the employee had embellished or falsified the facts in reporting the incident and resulting injury.

In granting the application to testify by telephone, the adjudicator stated that the burden is on the party opposing an electronic hearing to show that it may be substantially prejudiced if the hearing is held electronically. The employer had not explained how it would be deprived of a fair opportunity to cross-examine the witness simply because the evidence would be given by telephone rather than personally. The adjudicator commented that in terms of the credibility of the witness that is sometimes referenced in these decisions, it was the credibility of the employee rather than that of the physiotherapist that was at issue in this case. Moreover, as stated in Cann v. AS 4 Finance Ltd, 2014 HRTO 1260 (CanLII):

… it is not at all uncommon for doctors to testify by teleconference at a hearing. While I appreciate that witnesses are often inconvenienced by having to appear in person to testify and are thereby taken away from their work, it seems to me that medical professionals  are in a somewhat different category owing to the nature of their work and the frequency with which they are called upon to testify in disability discrimination cases  before this Tribunal.

The provision of evidence by teleconference is discussed in s. 13:500 of the Illness and Absenteeism supplement.

 


7. An employee returning from a maternity or parental leave was not necessarily entitled to return to the employment situation that existed prior to the leave.  

In Paragon Protection Ltd., 2017 CanLII 26156 (ON LA) (Von Veh), the employee had been hired as a concierge and was assigned to a lage residential apartment building. The building was one of 54 residential sites that were managed by the employer. There were eight concierges (or security personnel) at the building where the employee had worked. The employee’s classification, and the only classification under the collective agreement, was that of a security guard or security officer.

At the conclusion of the employee’s maternity leave, the employee was advised that she was being placed at another building. She would retain her position as concierge, she would continue to be scheduled on afternoons, and her rate of pay would remain unchanged. She was however unhappy in that she would be moving to a building where the staff and procedures were unfamiliar. She considered herself to be stressed out and unable to return. The employee was advised that her previous assignment was not available, for it was being filled by an employee who had been assigned to her former location while she was absent on leave.

The questions considered were whether the employer had violated the provisions of the collective agreement; the Ontario Employment Standards Act or the Ontario Human Rights Code by not reinstating the employee, at the expiration of her maternity leave, at her previous work site.

The arbitrator found that the employee had been offered a full-time job at a better location. He also found that the employee was aware that employees in the industry would move from location to location and that there was a need for the employer to be able to transfer employees from site to site, subject to the provisions of the collective agreement and any governing legislation.

Section 53(1) of the Employment Standards Act stipulated that upon conclusion of the employee’s [maternity] leave, “the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position if it does not.” The arbitrator found that a comparable position (i.e. that of concierge) was not available. Reliance was placed on Toronto District School Board, [2003] O.L.A.A. No. 141, 117 L.A.C. (4th) 78 (Picher), where arbitrator Picher stated:

… great care must be taken, on a case by case basis, in determining what constitutes an individual’s “position” for the purposes of Section 43(1) of the Employment Standards Act. Because it is a statute of general application, the provisions of the Act come to bear in myriad workplaces and apply to systems of hiring and work assignments which can be widely varied. In some work settings, employees may function as part of a pool or team; in others they may work alone or as part of a fixed group; in others, they may be part of groups which change constantly; both in their composition and their work location or duties, all depending on the nature of the employment. With these considerations in mind, we are not persuaded that it is useful to attempt a general definition of the term “position” for the purposes of section 43(1) of the Employment Standards Act or that indeed, it would be possible to do so. What can be said, however, is that the purpose of the article is relatively clear; the Act intends that the employee returning from her pregnancy and parental leave is to be placed back into the employment situation she left to the extent that situation still exists. In assessing the employment situation to which an employee is to return, regard [has] to be had to a number of factors, including, without necessarily being exhaustive, the duties and responsibilities previously performed, wages and benefits paid, as well as the location, hours and conditions of work.

Arbitrator Von Veh concluded that the employer had not violated the Employment Standards Act or the Human Rights Code. In doing so, the arbitrator first considered whether the employee had established a prima facie case of discrimination. While the employee was a member of a group protected by the Code, there was no evidence that she had suffered any adverse treatment. The arbitrator concluded that the employee’s reasons for insisting that she be reinstated to her former location were based on “idiosyncratic personal feelings and not founded in an objective assessment of what the employer [was] offering her.” The Code had not been violated. And finally, there had been no violation of the collective agreement.

The grievance was dismissed.

Matters related to establishment of a prima facie case of discrimination are considered in s. 14:410 of the Illness and Absenteeism manual and its’ supplement.