llness and Absenteeism.com - January 2013 Newsletter
In this edition you will find...
This decision, while not addressing the issue of illness and absenteeism, is instructive on the type of damages that might potentially be awarded in a case involving an egregious termination related to an issue involving absenteeism. Further commentary on the issue of damages can be found commencing at page 693 of the Illness and Absenteeism manual.
This case involved a judicial review of an arbitral award issued by adjudicator Quigley. Here, the employee, who was not covered by a collective agreement, had been hired to work as a special advisor at a salary of $360,000 plus a bonus of 15%. The grievance regarding his wrongful dismissal was heard under the Public Service Labour Relations Act.
This decision followed upon an appeal heard by the Federal Court (see (2011), 209 L.A.C. (4th) 1 (F.C.)).
The adjudicator considered that the reasons set forth for the employee’s termination were a sham. The termination was not justified and he awarded the following damages:
The Federal Court judge who initially heard the application set aside the award of damages for psychological injury, loss of reputation and obstruction of process. He “referred the matter back to the Public Service Labour Relations Board for redetermination of two matters, a redetermination of the quantum of the award for psychological damages, and a redetermination of the period for which interest was payable.”
The Federal Court of Appeal upheld the award of damages for loss of reputation. In the Court’s view, the adjudicator had not attempted to establish a new head of damages, but rather, was relying on the established jurisprudence permitting the quantum of damages to be increased based on the manner of termination (see Keays v. Honda Canada Inc. and Wallace v. United Grain Growers).
While the Court concluded that the Act did not provide an adjudicator with the authority to award costs, the adjudicator’s decision regarding the awarding of legal expenses that the employee was forced to incur because of the employer’s obstruction of the judicial process stood on a “different legal footing.” The Court stated:
As a general rule, courts and adjudicative decision makers have the inherent authority to control their own process and to remedy its abuse. This inherent authority includes, in an appropriate case like this one, the right to require the reimbursement of expenses necessarily incurred by a party as the result of abusive or obstructive conduct by an opposing party.
… In the highly unusual circumstances of this case, the adjudicator’s award of damages for obstruction of process was a lawful and reasonable exercise of the adjudicator’s authority to control the adjudication process.
The award of $125,000.00 for psychological injury had been set aside by the Federal Court and was not in issue in this appeal. The Federal Court of Appeal noted that this issue had been set aside and the quantum of such damages was to be referred back to the Public Service Labour Relations Board for a redetermination of this aspect of the award. Tipple v. Canada (Deputy Head - Department of Public Works & Government Services) (2012), 220 L.A.C. (4th) 217 (FCA) .
1. A well- respected Alberta arbitrator has recently adopted a just-cause approach regarding an absent employee’s failure to provide medical information to justify his ongoing absence.
This approach amounts to a marked departure from the accepted view that because of privacy concerns, an employee cannot be disciplined for failure to provide confidential information. Such an employee may however suffer the consequences of her decision. This might include being held out of work until such time as reasonably-required medical information has been provided to her employer.
Here, the employee had supplied the employer with medical documentation to support a diagnosis of depression. The employer sought further medical documentation prior to the end date of the medically supported absence. The employee however failed to respond to repeated requests for this information over the course of one month. He was then discharged following a letter of warning advising that failure to provide the required medical information would result in his termination. The termination was upheld despite the fact that the employee had 28 years of service and had no formal discipline on his personnel file. Calgary Co-operative Assn. (2012), 220 L.A.C. (4th) 329 (Ponak)
2. An employer’s denial of an unpaid leave of absence to teach journalism for a full-time term of eight months was upheld on the basis of the collective agreement provision governing such leaves.
The collective agreement stipulated that the granting of such leaves required the employee to demonstrate “good and sufficient cause.” The clause also imposed a condition that “such leave can be arranged without interference with the efficient operation of the newspaper.” The arbitrator held that this latter onus fell upon the employer.
The contract language was imported, without substantive discussion, from other collective agreements, and accordingly, even if admissible, “extrinsic evidence in the form of bargaining history and/or practice as an aid in interpreting the disputed language is unavailable …”
The arbitrator began his analysis by considering the management rights clause of the collective agreement. He stated that in the face of that clause, he had to determine “whether the employer took irrelevant considerations into account or improperly fettered its discretion when it determined that the Grievor did not establish “good and sufficient cause” for the leave request because the professional development opportunity was not related to his employment and/or was of no net benefit to the employer.” The arbitrator concluded that:
It is in my opinion an objectively reasonable exercise of the Employer’s management rights and of its discretion in the contractual and factual circumstances of the present case, to require the grievor to show some business advantage or benefit to the Employer in granting the Grievor’s request for a leave of absence to pursue an eight-month teaching opportunity with the local community college.
On the evidence before me I find that the grievor has failed to discharge this onus and that the Employer’s assessment of whether there was “good and sufficient cause” for the leave was reasonable in the circumstances.
The grievance was dismissed. See Metroland Media Group Ltd. (2012), 219 L.A.C. (4th) 361 (Luborsky)
3. In B.C. Public School Employer's Assn. (2012), 219 L.A.C. (4th) 391 (Lanyon), the union sought weekly production of Teacher-On-Call (substitute teacher) dispatch records. It did so in an effort to monitor the employer’s ongoing compliance with its obligations under the collective agreement. It relied on the Labour Relations Code, the terms of the collective agreement and the provisions of the Freedom of Information and Protection of Privacy Act. (“FOIPPA”). The application was denied.
The arbitrator distinguished applications under the Labour Relations Code. He concurred with the Union’s submission that “a distinction should be made between information that is provided to the Union so that it can properly fulfill its statutory duty under the Labour Code (generally referred to as contact information), and the ability of the Union to negotiate additional access to other forms of document(s) and information.” He commented that the outcome would be different if the request had arisen in the context of a grievance or arbitration, for in such case, an arbitrator has the statutory authority to issue pre-hearing orders after having considered such issues as relevance, privilege and privacy. The arbitrator stated that any obligation to disclose documents to assist the union to monitor the collective agreement must be found within the terms of the collective agreement. While the collective agreement provided for access to information, its terms did not support the union’s application.
In terms of the union’s reliance on FOIPPA, the employer had provided information in respect of seven of the eight demands made by the union. It refused the union’s request for documents regarding the union’s request for Teacher-On-Call dispatch records on the basis that they would disclose personal information contrary to section 22 of FOIPPA. The arbitrator concluded that in balancing the interests of the parties under the legislation, “almost all of the information demanded by the Union provides no benefit under the collective agreement or serves no purpose in the fair determination of the rights of TOCs.” The reasons underlying the application were not “sufficient to overcome the statutory presumption of privacy in respect to the personal information of absentee teachers in the employment context.”
The grievance was dismissed.
4. In Manitoba Housing Authority (2012), 221 L.A.C. (4th) 186 (Gibson), the evidence that was tendered by the employer was largely circumstantial. The arbitrator stated that this did not necessarily weaken its probative value. Certain of the explanations provided by the employee were not reasonably plausible, and that was in itself, in the circumstances of this case, sufficient to dismiss the grievance.
Although the issue of circumstantial evidence is not confined to cases of illness and absenteeism, the topic has been considered in the Illness and Absenteeism manual as an aid in preparing submissions based on such evidence. See section 13 of the manual and the “link” that follows.