Illness & Absenteeism - February 2021 Newsletter
Welcome to the February, 2021 issue of the Illness and Absenteeism newsletter. In this issue, you will find:
A. Featured Case:
An arbitrator dismissed a union’s grievance regarding the employer’s use of approximately twenty workplace surveillance cameras. The cameras here were not highly intrusive; the surveillance was not surreptitious; the cameras were not being used to monitor employee productivity; and they had not been trained directly on employee work stations. [click here to read more ]
B. Other Decisions of General Interest
- An employer was not required to consult with an employee or her union prior to offering the employee an accommodated position that met all of the restrictions that were identified in her medical documentation. [click here to read more]
- A union’s unilateral withdrawal of a grievance was held to be tantamount to an adjudication that the allegations in the grievance were not established and that the grievance was without merit. [click here to read more]
- An arbitrator recently concluded that the presumption in favour of hearing a matter via videoconference should continue to apply even where in-person hearings are strictly possible while adhering to safety protocols. [click here to read more]
- An abscessed tooth that was surgically resolved did not constitute to a disability within the meaning of the Human Rights Code of British Columbia. [click here to read more]
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A. Featured Case
An arbitrator dismissed a union’s grievance regarding the employer’s use of approximately twenty workplace surveillance cameras. The cameras here were not highly intrusive; the surveillance was not surreptitious; the cameras were not being used to monitor employee productivity; and they had not been trained directly on employee work stations.
In Royal Group, Inc., 2020 CanLII 79120 (ON LA) (Chauvin), the issue was whether the employer was entitled to activate approximately 20 surveillance cameras in its pipe manufacturing plant.
It was agreed that the plant was a safety sensitive workplace.
The employer’s policy regarding surveillance had been updated in 2016. It stated that “The Company reserves the right to install and survey security cameras in work areas for specific business reasons such as security, theft protection or protection of proprietary information.” The policy had not been agreed to by the union.
At the hearing, the employer outlined several problems that it had encountered with employee health and safety, the quality of its products, and security and the protection of its property. It contended that the video cameras were required to help address these problems. The cameras were activated in June of 2019. By that point the employer had documented 17 security-related incidents in a three year period.
Before activating the cameras, the employer advised the employees, at its regular Employee Communications Meeting, of its reasons for doing so. The employer followed that advice by posting several signs throughout the plant that gave notice that “for security and quality purposes” there were now video cameras in the work areas, and that activities were now being monitored by these cameras.
The majority of cameras were attached to rafters in the “plant ceiling”.
From their high vantage point and their fixed and broad view of the area, the cameras also view the employees who are working in the work areas. However, the employees are not the focus of the view. The cameras are not trained on employees, and the cameras are not monitoring the productivity of the employees. Rather, the employees are just a small part of the broad picture as they move in and out of the work area. The employees are definitely quite small in the entire picture. From the video footage alone, it would be very challenging to identify exactly which employee is in the view. However, if the employer knows which employee was supposed to be working at that place and at that time, and if the employee did not dispute this, the video footage would provide information regarding who the employee was, and what the employee was doing at that time.
The monitors for the cameras are in the Plant Manager’s office, which is locked. The Plant Manager is the highest ranking person at the plant. Only the Plant Manager, the Production Manager and the Maintenance Superintendent have access to this office, and the password to view the video footage. So they are the only persons who can view the monitors. [The Plant Manager] testified that in the eight months [between when the cameras were activated and the date of his testimony], he had never watched the live footage of the cameras. [He also testified that] he has only rarely viewed the stored footage of the cameras, being only when he has a specific reason to do so, such as when there has been an accident or a malfunction of the fabrication process … [H]e testified that this is also the case for the Plant Superintendent and the Production Manager. The camera footage is only stored for about thirty days, and then it is recorded over.
In dismissing the grievance, arbitrator Chauvin relied on a passage from Pope & Talbot Ltd., (2003), 123 L.A.C. (4th) 155 (Munroe, where arbitrator Munroe stated:
But just as an employee’s privacy interests require protection against the overzealous exercise of management rights, so also must an arbitrator acknowledge the employer’s legitimate business and property interests. What is required, then, is a contextual and reasonable balancing of interests. There is no absolute rule affording precedence to one legitimate interest over the other. It is a question of whether the particular camera surveillance, in the purported exercise of a management right, is reasonable in the circumstances.
The union’s institutional concerns about the camera surveillance, and the employees’ personal subjective concerns, cannot per se override the employer’s competing and legitimate business interests. But neither can those concerns be regarded as de Minimis”. Constant camera surveillance of an employee’s productivity, whether that is the primary purpose or just incidental, would obviously be preoccupying and may understandably be regarded in some circumstances as a diminution of one’s sense of personal dignity or privacy … The threshold for determining the reasonableness of non-surreptitious video surveillance is lower than with surreptitious video surveillance, however a meaningful threshold does exist.
Arbitrator Chauvin stated that in his view, “ the analysis of weighing and the balancing of the competing interests involved, raises two questions: (i) was it reasonable, in all of the circumstances, for the employer to rely on video surveillance; and (ii) was the surveillance conducted in a reasonable manner.”
The arbitrator distinguished the circumstances here from those found in some of the other cases. Here, the cameras were not highly intrusive as was the case where they had been placed in lunchrooms, hallways to washrooms and personal areas of the workplace. Further, the cameras here were not installed for monitoring the productivity of employees and were not trained closely on the employees.
The arbitrator also found that the employer had taken reasonable measures to try to address its concerns before the cameras were activated, and yet those concerns nevertheless continued.
In addition, arbitrator Chauvin commented that the union had not proposed any alternatives to the employer’s use of surveillance that might address the issue. He stated that “In the absence of being able to identify any alternatives that could resolve both the employer’s problems and the union’s concerns, it becomes more likely that the employer’s actions can be found to be reasonable.”
In the result, the arbitrator concluded that all of the cameras were being used in a reasonable manner and not in a way that violated the employee’s expectation of privacy or the union’s institutional interests. The grievance was dismissed.
The matter of both surreptitious and non-surreptitious surveillance is reviewed in Chapter 12 of the Illness and Absenteeism manual and its Supplement.
B. Other Decisions of General Interest
1. An employer was not required to consult with an employee or her union prior to offering the employee an accommodated position that met all of the restrictions that were identified in her medical documentation.
In Ontario Energy Board, 2020 CanLII 64845 (ON LA) (Parmar), the employee sought accommodation after having suffered a head injury. Although the employer had offered to accommodate her in the workplace, the employee deemed that offer to be unsuitable. Instead, she sought to work from home.
The note from her doctor stated only “head concussion, please accommodate patient for 1-2 days per week (work from home)”. On cross-examination, the employee “acknowledged that working from home may have been something that she had indicated to her doctor that she preferred.”
The employer advised the employee that it could accommodate her identified needs in the workplace and that she could use the sick room to rest when needed. The letter also advised that if she did not accept this accommodation, the employee could book off sick until her health improved. At a meeting convened to consider the matter, the employee was invited to explain how she thought that working from home would work. The employee provided additional information concerning her duties and needs. With this additional information, “it became obvious that working in the office was not going to be feasible and the question was raised as to whether the [employee] should be working at all.” The employee was concerned about possible negative implications of having been on sick leave, but the employer assured her that her concerns were unfounded. After the meeting, the employee sent an email stating that although it was her preference to work from home with modified hours, she would follow the employer’s suggestion of taking sick leave. She testified that she did so because “she could see that there was no middle ground.” She then went off on sick leave and remained off for upwards of six weeks.
The arbitrator stated that doctors sometimes suggest certain methods of accommodation, but
the provision of such suggestions by doctors can be confusing to employees, as employees sometimes think that anything a doctor says must be followed. Simply put, that is not the case. The role of doctors in the accommodation process flows from the scope of their professional expertise, which is about identifying an individual’s medical restrictions and limitations. The identification of the appropriate workplace accommodation is left to employers, who know best the operation of the workplace and their own operational needs.
The arbitrator stated that there was little need for the employee to be consulted before the accommodation was offered, for the employer was offering an accommodation that met all of the identified restrictions in her medical documentation. Similarly, in respect of the union’s role in the process,
This role does not mean that an employer cannot communicate directly with an employee in any manner on the issue of accommodation, subject of course to any specific collective agreement requirements … Given that the employer was offering the [employee] accommodation addressing all the disability-related limitations identified in the medical document, and given that the proposed accommodation could be implemented without any modification of the collective agreement and without intruding on the collective rights of any other employees, there was little need to involve the [union] prior to or when issuing [the employer’s letter].
The union had suggested that the employer’s letter had a “take it or leave it character which failed to reflect the flexible and collaborative approach that should be followed in accommodation.” The arbitrator saw nothing inherently objectionable in the letter. He also saw nothing unreasonable in the employer’s offer that the employee could take sick leave.
The arbitrator also commented that he had not addressed any of the evidence concerning the feasibility of working from home because once he found that the employer’s offer of accommodation was reasonable, “whether or not working at home was feasible is immaterial. As long as the employer can establish that its proposed accommodation is reasonable, it will have met its duty to accommodate.”
The issue of consultation in the accommodation process is addressed in Chapter 14 of the Illness and Absenteeism manual and its Supplement.
In Middlesex-London Paramedic Services, 2020 CanLII 80312 (ON LA) (Abramsky), the union sought to withdraw its grievance (initially without prejudice, and later with prejudice) after completion of the evidence but prior to argument. The employer objected and sought a decision on the merits.
Both parties cited Brown and Beatty, Canadian Labour Arbitration, 5th ed. for the proposition that “once the actual hearing has commenced, withdrawal without the consent of the other party will require an arbitrator to decide whether to permit the withdrawal or to proceed to issue an award on the merits.”
The union cited Great Atlantic and Pacific Company of Canada Ltd., 191 CarswellOnt 6491 (Picher), where the employer objected to withdrawal on the basis that the grievance amounted to a “test case.” The arbitrator (Picher) stated:
[The] arbitrator is satisfied that the Board does not have jurisdiction to direct the continuation of the arbitration in the face of the decision of the union to withdraw its grievances. As with any party litigant, a union processing a grievance at arbitration retains the right to abandon or withdraw its grievance at any time …
Arbitrator Picher determined however that the withdrawal was ”subject to the grievance being accordingly dismissed by the arbitrator” and that the dismissal was “tantamount to an adjudication on the merits of the allegations made in the grievance and an arbitral finding that they are not established and are without merit” In commenting on that outcome, arbitrator Abramsky stated
That meant that the union’s withdrawal of the grievance “was tantamount to an adjudicated finding that the … allegations made by the union in its grievances are not established. That is to say, it has failed to establish [those allegations] …
Here, arbitrator Abramsky noted that a similar outcome was reached in CUPE and COPE, 2013 CarswellBC 2915 (Dorsey). In dismissing that grievance, arbitrator Dorsey stated that he was doing so
in furtherance of the shared collective agreement goal of final resolution of disputes without undue delay, the [legislated] duty to promote conditions favourable to the final settlement of disputes and for the labour relations policy reasons that led other arbitrators to reject unilateral withdrawal of grievances in the advanced stages of an arbitration proceeding.
[Arbitrator Dorsey stated that he dismissed the union’s application to withdraw the grievance, finding that “in light of the union’s withdrawal application … the grievance is without merit and the employer has established just cause for its non-culpable dismissal of [the grieving employee].”
Arbitrator Abramsky also referenced Guelph General Hospital, 1992 CarswellOnt 1181 (Burkett) where the arbitration board had concluded
There are strong policy reasons for not permitting such a unilateral withdrawal. If either party is permitted to unilaterally withdraw a grievance after the completion of the hearing, thereby avoiding the risk of loss on the facts relied upon, there is a twofold negative policy implication. Firstly, the effect is to lessen the incentive to settle prior to the hearing thereby running counter to the statutory preference for two-party settlement where possible. Secondly, the effect is to prevent the issuance of an award that might provide a definitive interpretation of the contract language at issue thereby sowing the seeds for future conflict in respect of that issue either in the administration of the agreement or in the negotiation of its renewal.
Having regard to the foregoing, … once the parties decide to proceed to arbitration, and have been put to the time and expense of a hearing, it is too late to unilaterally withdraw the grievance.
In this case, arbitrator Abramsky denied the union’s request to unilaterally withdraw its grievance. He directed that the union’s closing argument on the merits would proceed through written submissions, with the employer having a right to reply.
Other decisions involving the withdrawal or abandonment of a grievance can be located by referencing the “Procedural Matters” heading within the index set forth at the beginning of the Illness and Absenteeism supplement.
3. An arbitrator recently concluded that the presumption in favour of hearing a matter via videoconference should continue to apply even where in-person hearings are strictly possible while adhering to safety protocols.
In Regional Municipality of Waterloo, 2020 CanLII 107569 (ON LA) (Johnston), the union sought an in-person hearing while the employer sought to have the matter heard via a video conference because of the ongoing pandemic.
Arbitrator Johnston directed that the arbitration proceed by videoconference. In doing so, he commented that the use of videoconferencing had become and continued to be the norm since the onset of the pandemic despite the lifting of restrictions beginning in the summer of 2020. In adopting the continuation of that approach, the arbitrator commented that it did not serve any good purpose to potentially contribute to the uptick in cases if the alternative to meet virtually is a reasonable and effective substitute. He dismissed concerns that credibility of witnesses is compromised by the use of such technology, stating that in his experience, the use of videoconferencing had not hindered his ability to assess a witness’s demeanour.
In considering the decisions in Sunnybrook Health Sciences Centre (Surdykowski 2017) and Memorial University (Oakley 2012), arbitrator Johnston commented that the cautions raised by both arbitrators had to some extent been tempered by the vast improvement in the technology that exists today. He concluded that
We are not at a point where meeting in person does not come without serious risk. In the face of opposition from one of the parties, I am not prepared to order a face to face hearing and subject the participants to unnecessary risk when the alternative of a virtual hearing is both reasonable and effective.
The arbitrator directed that the scheduled in-person hearing be converted to a hearing via videoconferencing utilizing the “Zoom” platform.
Other decisions involving the presumption in favour of videoconferencing during the course of the pandemic can be located by conducting a search in the Illness and Absenteeism supplement using the term “COVID”.
In Marcon Construction, 2020 BCHRT 80 (CanLII) (Cousineau), the employee had been terminated after he had left work without permission. He claimed that he had been suffering from a disability in that he had an abscessed tooth that was making him ill.
The British Columbia Human Rights Code prohibited discrimination on the basis of “physical disability”. That term was not defined in the Code. The adjudicator stated:
To decide whether a condition is a “disability”, the Tribunal generally considers the degree of impairment and any functional limitations, and any social construction of disability … It considers factors like “whether the condition entails a certain measure of severity, permanence and persistence”
“Disability” does not capture every medical problem. Specifically, it does not include conditions that are temporary and treatable, like a cold or flu, or a broken bone … The Supreme Court of Canada explains that these types of conditions are excluded because “there is not normally a negative bias against these kinds of characteristics or ailments” …
In this case, the [employee] says that he was “fired for going to medical/dental emergency surgery.” He says he had an abscessed tooth that was causing him to feel ill.
The only evidence of [the employee’s] abscessed tooth was a temporary condition that was addressed through surgery within a relatively short time frame. There is nothing to suggest that the condition persisted for a long period of time or is a basis on which a person may face stereotype and stigma.
The adjudicator concluded that the employee’s condition did not constitute a disability. Consequently, the employee’s complaint was dismissed.
Other decisions considering the meaning of the term “disability” can be located by referencing the “Disability” heading within the index set forth at the beginning of the Illness and Absenteeism supplement.