llness and Absenteeism.com - February 2015 Newsletter
In this edition you will find:
A. Featured Case: A non-unionized bank employee failed to establish that he had been constructively dismissed after his employer allegedly refused to accommodate him by providing a change in his work location. [Click here]
B. Recent Decisions of General Interest:
1. An employer was not required to maintain an accommodated employee’s pre-injury wages and benefits pending a ruling as to whether the employer had the right to reduce them to that of the classification that the accommodated employee was now occupying. [Click here]
2. An employer did not breach its duty to accommodate where it refused to permit an employee to return to work pending agreement on the last chance terms to be included in the Return to Work Agreement. [Click here]
3. Documents that had been created for and filed by a nurse in a disciplinary proceeding under the Ontario Nursing Act were held to be inadmissible in her termination arbitration because of s. 36(3) of the Ontario Regulated Health Professions Act. [Click here]
4. An employer did not fail in its duty to accommodate where the disabled employee refused to provide medical information to assist in determining an appropriate accommodation. [Click here]
5. The discharge of an accommodated employee was upheld where he moved to another province and effectively abandoned his employment. [Click here]
6. Communications made during the grievance procedure may be admitted into evidence pursuant to one of several recognized exceptions. [Click here]
A. Featured Case: A non-unionized bank employee failed to establish that he had been constructively dismissed after his employer allegedly refused to accommodate him by providing a change in his work location.
In Bank of Montreal, 2014 CanLII 35910 (CA LA) (Marvy), a thirty year, non-unionized bank employee alleged, by way of an unjust dismissal complaint, that the employer’s failure to accommodate him by providing a change in his work location constituted a constructive dismissal.
For the last 20 years, the employee had resided in Barrie with his work location in Toronto. For a period of 6 or 7 months in 2011/2012, he worked on a project for two days a week in Barrie, with the other three days continuing to be worked in Toronto. In late February of 2012, the employee provided a note from his family physician stating “it would be advisable for him to work in Barrie 5 days a week.”
The employer’s disability management firm requested more information. The employee’s physician advised that the two hour trip (each way) from Barrie to Toronto was stressful and left him short of sleep. He couldn’t get enough rest and the resulting stress aggravated both his eczema and his hypertension.
Shortly thereafter, the employee was involved in a motor vehicle accident that caused whiplash and resulted in a two day absence from work. Without knowledge of the accident, the employee’s claim for accommodation was denied. Approximately two weeks later, the employee left work and filed for short term disability. That claim was also denied.
The employer’s consultant subsequently provided the employee with a list of options, including either returning to work or appealing the decisions involving the claims for accommodation and for short term disability. Instead, the employee filed his unjust dismissal claim for constructive dismissal.
In considering the claim of constructive dismissal, the adjudicator stated that the issue for determination was “whether the complainant has met its onus to show either that the Bank has breached a fundamental term of the employment relationship or the employer’s conduct is so egregious that it demonstrates a repudiation of the entire employment relationship.” He found that the employee had not met that onus. In the first case, the medical information that was provided “did not support a requirement to accommodate [the employee] to relieve him of his commute from Barrie to Toronto.” Nevertheless, the employer had extended a form of accommodation in that it offered him an ergonomic assessment and flex time. The employee made no effort to try what was offered, nor did he make any counter offer or suggestion of other forms of accommodation. It was all or nothing: “no commute or I will not attend work.”
The adjudicator also rejected the employee’s assertion that the employer’s use of a third party to assess medical-related claims was a fundamental breach of the employment contract. The employer remained ultimately responsible for any decisions that were made, and it had made it clear that it was not obligated to follow the recommendations of the third party.
The employee had remained employed, on an unpaid leave of absence, following the denial of his claim for disability benefits. His complaint under s. 240 of the Canada Labour Code alleging unjust dismissal was dismissed.
The issues of third party assessment of claims information and the accommodation of work location preferences are considered in sections 4:205 and 14:619 of the Illness and Absenteeism manual and its supplement.
A. Recent Decisions of General Interest
1. An employer was not required to maintain an accommodated employee’s pre-injury wages and benefits pending a ruling as to whether the employer had the right to reduce them to that of the classification that the accommodated employee was now occupying.
In Waste Management of Canada, 2014 CanLII 33455 (ON LA) (Jesin), the employer accommodated a disabled employee by placing him in a position outside of the bargaining unit, while all the while maintaining his pre-injury earnings and benefits. When the Workplace Safety and Insurance Board (the “WSIB”) declared that the employee’s disability had become permanent, his wage rate and benefits were reduced to those of the position he was occupying. The WSIB compensated him for the difference in wages but there was no compensation to address the loss in benefits.
While Union counsel accepted that the employer was entitled to compensate the employee at the same level as those who were performing the accommodated work that the employee was given, he submitted that this case differed because “the Employer paid the [employee] his benefits for three years after he moved outside the bargaining unit and only stopped paying those items not because of a change in his job but because his restrictions, which were considered temporary, had now become permanent."
Arbitrator Jesin commented that
It is now well settled since the Court of Appeal decision in Orillia Soldiers Memorial Hospital, that an Employer who accommodates an employee in a new position because of a disability must compensate the employee at the level pertaining to the work that is provided and not at the level of the job that the employee was performing when the disability arose.
The arbitrator dismissed the argument that the Orillia approach should be altered because the employer agreed to pay the [employee] at his former level of compensation while he was temporarily being accommodated outside the bargaining unit.
That was clearly to the [employee’s] benefit. Once the [employee’s] restrictions and his accommodation outside the bargaining unit became permanent, the Employer was entitled to compensate the [employee] at the level pertaining to the work he was performing …
The issue of reducing pay and benefits for an employee working in an accommodated position is considered in section 14:615 of the Illness and Absenteeism manual and its supplement.
2. An employer did not breach its duty to accommodate where it refused to permit an employee to return to work pending agreement on the last chance terms to be included in the Return to Work Agreement.
In Revera Long Term Care Inc., CanLII 33919 (ON LA) (Steinberg), the employee alleged that the employer’s refusal to agree to all of the Union’s provisions in a Return to Work Agreement amounted to a refusal by the Employer to comply with its duty to accommodate. The major disagreement centred on the consequences that would flow if the employee violated three specific provisions of the agreement. The Union alleged that the clauses were discriminatory and further, that the employee should have been permitted to return to work pending a finalization of the agreement.
The employee, who worked as a Registered Nurse at the Employer’s care home, was alleged to have violated practice standards with regard to both documentation and the administration of medication. It was also alleged that she had engaged in resident abuse and theft. She was charged with theft, fraud and elder abuse, and she voluntarily surrendered her nursing license to the College of Nurses of Ontario. She also entered into a Memorandum of Agreement with the College. That Memorandum, which was to be operative for a term of 35 months, placed severe restrictions on the nurse both in terms of the treatment she was to undergo as well as restrictions on her practice of nursing.
The language that the Union found to be problematic in the proposed Return to Work Agreenent provided that a breach of the terms of the agreement would constitute just cause for discharge, and that
Any grievance and arbitration relating to such discharge for just cause will be limited to the question of whether or not the Employee did, in fact breach [the stipulated clauses]. The Arbitrator or Arbitration Board will not have any authority to substitute a lesser penalty.
During subsequent discussions, the Employer proposed that the agreement be revised to provide that a breach of its terms would constitute “just cause for discipline up to and including discharge.” The Union subsequently proposed that the clause dealing with arbitral discretion be amended to provide that
The Arbitrator or Arbitration Board will not have any authority to substitute a lesser penalty unless such discipline would be contrary to the Employer’s obligation to accommodate a disability up to the point of undue hardship …
The Return to Work Agreement was signed by the parties with these changes and the employee was then permitted to return to work on a graduated basis.
The arbitrator concluded that by the time the parties were in dispute over the terms of the agreement, the employer had significantly accommodated the employee by “not terminating her, by putting her on sick leave in order to deal with her addictions, by agreeing to re-instate her pursuant to the [Return to Work Agreement] and with the restrictions placed on her by the [College of Nurses].”
In considering the “legality” of the clauses proposed by the employer, the arbitrator stated
It is obvious that the [Last Chance Agreement] language is discriminatory in the sense described above [i.e. the language deprived the employee of the just cause standard and restricted the jurisdiction of the arbitrator, both of which provisions were available to other employees who were disciplined for a similar violation.] … However, it would only be illegal as contrary to the Code and the collective agreement if it does not meet the three step approach outlined in Meiorin. …
The first and second steps in Meiorin are whether the employer adopted the standard for a purpose rationally connected to the performance of the job and that the standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose.
There can be no doubt that the first two steps are satisfied in this case … Therefore, as in most cases, the matter falls to be decided on the third step in the Meiorin analysis, namely whether the [last chance agreement] was reasonably necessary to the accomplishment of the work related purposes in that it was impossible to accommodate the [employee] without imposing undue hardship on the Employer.
The arbitrator adopted the comments of arbitrator Levinson in Kimberly-Clark Forest Products Inc. (2003), 115 L.A.C. (4th) 344 (Levinson), where that arbitrator concluded that similar clauses in a last chance agreement that was in itself a form of accommodation were, by agreement of the parties, “reasonably necessary to accomplish the legitimate work-related purpose connected to the performance of the grievor’s job, namely in order to control his addiction and to work safely and productively for the Company.”
Arbitrator Steinberg then commented that the agreement could not be upheld “as reasonably necessary unless the Employer has demonstrated that it is impossible to accommodate the [employee] without imposing undue hardship on the Employer.” In answering this further question, the arbitrator stated:
This drives the analysis back to the contextual matters … The Employer made significant prior efforts to accommodate the [employee]. These contextual matters underlie the statement of the parties in the recitals to the [Return to Work Agreement] that continuing accommodation of the [employee] might cause undue hardship on the Employer. By any measure the Employer’s accommodation of the [employee] was significant and imposed hardship on the Employer in the way it carried out its business.
Determining whether further accommodation would entail undue hardship on the Employer is never easy. However, [based on the facts as they existed when the agreement was being negotiated, the language was not in my view] illegal under either the collective agreement or the Code and I find that the Employer did not fail to accommodate the [employee] by requiring that the [last chance agreement be part of the Return to Work Agreement].
The arbitrator rejected the union’s contention that the employer failed to accommodate the employee by not returning her to work while the parties were negotiating the last chance provisions. “The [last chance agreement] was a “fundamental and integral requirement” … of the [Return to Work Agreement]. More importantly, it was critical that the [employee] “clearly foresee the consequences that would follow if [she breached the conditions] … during the period specified in the [Return to Work Agreement]. The arbitrator stated:
In my view, it is not acceptable to require an agreement such as the [Return to Work Agreement] to be implemented in the absence of complete agreement on one of its fundamental terms. It would not have been fair to the [employee] to return to work without being fully aware of the consequences of failing to adhere to the agreed conditions and it would have been equally unfair to the Union and Employer to have to manage the resulting chaos if the conditions were violated in the absence of an agreement as to the consequences of such violation.
Both parties had “acted diligently and responsibly in negotiating to protect the interests of all concerned.” The grievance was dismissed.
The enforceability of last chance agreements is considered in section 16:206 of the Illness and Absenteeism manual and its supplement.
3. Documents that had been created for and filed by a nurse in a disciplinary proceeding under the Ontario Nursing Act were held to be inadmissible in her termination arbitration because of s. 36(3) of the Ontario Regulated Health Professions Act.
In Riverside Health Care Facilities Inc., 2014 HRTO 971 (CanLII) (Sanderson), the employee had been terminated after having admitted stealing narcotic medication.
At arbitration, the employee adduced several documents including medical documents expressing opinions regarding her substance abuse problems. All of these documents had been created for the purpose of responding to a related complaint that had been filed with the College of Nurses of Ontario.
Following completion of the grievance hearing, the arbitrator became aware of section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. That section states:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
It was acknowledged that the College of Nurses had struck a panel to inquire into a complaint regarding the nurse’s capacity to practice and that the parties had agreed that the matter would be addressed by way of a consent order. After having become aware of the s. 36(3) provision, the grievance arbitrator directed that written submissions be made by the parties.
The arbitrator stated:
In my view, the case law is clear that any document prepared for a proceeding under a health profession act, such as the Nursing Act, is inadmissible in a hearing before this Tribunal. Matters before the [Inquiries, Complaints and Reports Committee] of the College and its [Fitness to Practice Committee] are clearly proceedings under a health profession Act, since both [were] established pursuant to the Health Professions Procedural Code, which is deemed to form part of the Nursing Act.
The arbitrator found that all of the documents filed with the College during a four week period were prepared for the Nursing proceedings and were therefore inadmissible in arbitration. In the result, the arbitrator invited the parties to make submissions on matters affected by this determination, including on the issue of how the arbitrator should proceed on the question of the matter before it.
The impact of s. 36(3) of the Regulated Health Professions Act on the admissibility of documents created for a medical or nursing proceeding in Ontario is considered in section 10:301 of the Illness and Absenteeism manual and its supplement.
In North York General Hospital, 2014 HRTO 984 (CanLII) (Mackenzie), the employee filed a human rights complaint against both his employer and his union. He alleged that his employer had failed to accommodate his shoulder injuries and that his union had discouraged him from seeking accommodation.
The employee, who had been accommodated in a temporary clerical position following his first shoulder injury, subsequently injured his other shoulder. The employee’s physician then provided the employer with a medical authorization permitting the employee to work in a temporary position as a records officer.
The employee was unsuccessful in applying for several other positions. He was told that he would not be considered for such positions unless he provided updated medical information that was required in order to accommodate his disability. He alleged that the requirement for such information was unnecessary and a breach of the duty to accommodate.
The adjudicator stated that there was no dispute that the employee had a disability. He had shoulder-related restrictions and was in receipt of workers’ compensation benefits. “The [Ontario] Code provides that an employee receiving benefits under the [Workplace Safety and Insurance Act] is considered to have a disability within the meaning of the Code … It [was] also not disputed that the [employee] required accommodation for his disability. The issues [were] the extent of the accommodation required, whether the employer appropriately considered accommodation, and whether the union discouraged the [employee] from obtaining an accommodated position.”
The adjudicator accepted that the duty to accommodate had both procedural and substantive components. No reference was made to the Federal Court of Appeal decision in Canada (Attorney General), 2014 FCA 131 (CanLII), where that Court determined that there was no separate procedural duty to accommodate.
After having referenced an employer’s health and safety obligations under the Ontario Occupational Health and Safety Act “to take every precaution reasonable in the circumstances for the protection of a worker,” the adjudicator stated:
… an employer is justified in obtaining medical clearance for an employee who has a disability and has had work-related aggravations of his disability in the past. This is because there is an obligation on an employer to safely accommodate when the nature of the disability is not clear or if the restrictions associated with the disability are not self-evident … In this case, the [employer] had conflicting and incomplete medical documentation. In addition, a less physically demanding clerical job had resulted in a report from the [employee] that there was an aggravation of his disabilities. [He] was informed on a number of occasions by email and over the telephone that updated medical information was required and that he would not be considered for further positions until that information was provided. [He] acknowledged that he was aware of this condition.
The adjudicator found that “in the absence of current medical information on his restrictions, it was not possible for the [employer] to consider whether the duties of [the particular position] could be modified to accommodate the [employee].”
Therefore, the information that was available was not sufficient to determine whether an accommodation was possible.
The allegations against the union were not substantiated. The application was dismissed as against both the union and the employer.
An employee’s obligation to provide medical information to facilitate her possible accommodation is considered in section 14:432 of the Illness and Absenteeism manual and its supplement.
In Canadian National Railway Company, 2014 CanLII 51707 (CA LA) (Picher), the employee held an accommodated position as a flagman at Mimico, Ontario. After a short absence, he failed to return to his accommodated position. He was found to have moved to Nova Scotia without any advice to or discussions with his employer.
When the employer was finally able to contact the employee, it discovered that he was incarcerated for robbery and that he would remain in jail for a period of nine to twelve months. The arbitrator commented that the employee’s criminal activity occurred after he had abandoned his employment and moved to Nova Scotia. He made no attempt to contact the company after he relocated. When the employee was located and then contacted, he requested that he be accommodated in a position in Nova Scotia. The employer denied that request on the basis that the accommodation that was available to the employee was located in Ontario.
The arbitrator upheld the employee’s discharge for unauthorized absence. He accepted that the employee’s actions in abandoning his employment, failing to respond to the employer’s messages, moving to Nova Scotia without notice to the employer, engaging in criminal activities, and concealing his subsequent incarceration from his employer “all effectively put an end to the bond of trust between the [employee] and his employer.”
The issue of an employee’s abandonment of her position is considered in section 17:301 of the Illness and Absenteeism manual and its supplement.
In North American Mining Ltd., 2014 CanLII 50001 (AB GAA) (Wallace), the arbitrator was required to determine whether questions posed by the employer’s counsel on cross-examination were non-compellable on the basis of “labour relations privilege” or “grievance procedure privilege.” The questions related to an exchange during the grievance procedure as to whether the employee was terminated by the employer or only laid off because of a site ban by the owner of the project where the worksite was located.
After having reviewed the policy considerations and approach taken by arbitrators in treating discussions between the parties as being privileged and inadmissible in evidence at arbitration, the arbitrator stated:
Nevertheless, grievance procedure privilege is not absolute … Among the exceptions are that evidence of grievance procedure communications may be adduced to establish that the grievance was in fact settled in whole or in part … Another exception is that grievance communications may be admitted to prevent the arbitrator from being misled as to the true state of the facts, or to otherwise prevent an abuse of the arbitration process.
Finally for purposes of this case, there appears to be a number of awards in which an exception has been made where a communication within the grievance procedure is necessary to define the scope of the dispute that is before the arbitrator or to otherwise ensure a fair hearing. In these cases, the communication sought to be introduced into evidence generally seems to be a discrete part of the grievance discussions that may without undue difficulty be isolated from the rest of the parties’ communications. As such, they may be said to be cases in which the fourth principle articulated in Slavutych v. Baker is not satisfied: that is, they are cases in which admitting the communication into evidence is important to the correct disposal of the litigation and the disclosure of the communication is unlikely, in its context, to injure the parties’ confidential relationship during administration of the grievance procedure.
The arbitrator concluded:
In the absence of any collective agreement language bearing on the question, I am of the opinion that this case is one of the exceptional ones in which grievance procedure communications should be admitted into evidence.
The employer was allowed to conduct a restricted cross-examination concerning the discussions and to call its own evidence of grievance procedure discussions pertaining to how it had characterized the employee’s removal from the worksite.
The issue of the admissibility of discussions during the grievance procedure is considered in section 10:406 of the Illness and Absenteeism manual and its supplement.