llness and Absenteeism.com - January 2018 Newsletter

In this edition you will find:

A.  Featured Case: The Ontario Court of Appeal has held that a disabled employee who was wrongfully dismissed was entitled to damages of $246,000 plus costs of $40,000. The employee, who had been earning $12.85 per hour, had, in the words of the court, been belittled, isolated, humiliated and made to suffer the effects of her disability (a sudden and unexplained onset of deafness) to the greatest extent possible. The employer’s conduct was deliberate, malicious and designed to force the employee to quit a job that she had held for 16 years.    [Click here]

B. Recent Decisions of General Interest

1. An employer was found to have voluntarily waived solicitor-client privilege regarding a confidential “labour-relations” report when it relied on portions of the report to provide background context to a matter that was before the British Columbia Labour Relations Board.    [Click here]

2. An employee who failed to advise his employer that his continuing mistakes were due to a diagnosed disability (“ADHD”)” was relieved from his obligation to do so because the nature of the mistakes should have caused the employer to make reasonable inquiries concerning the existence of an underlying disability.    [Click here]

3. In reinstating an employee who had been improperly terminated pursuant to a deemed termination clause, the arbitrator reduced the employee’s entitlement to retroactive compensation by a percentage corresponding to the percentage of time that the employee had been absent from work due to illness.    [Click here]

4. An employer who resigned after being told that her termination was a virtual certainty was successful in having her resignation declared to be invalid.    [Click here]

5. An employer was found to have discriminated against an employee when it denied her an unpaid leave to care for her autistic child during the child’s summer vacation.    [Click here]

6. An arbitrator upheld the termination of two custodial employees who were discovered smoking marijuana in a parked car during their work shift.    [Click here] 

7. An arbitrator held that a last chance agreement that reduced the employee to probationary status and subjected him to a drug testing protocol did not breach the Ontario Human Rights Code. A further provision acknowledging that the employee had been accommodated to and beyond the point of undue hardship was also held to be valid.    [Click here] 

8. An employer was not required to accommodate an employee who was suffering from Irritable Bowel Syndrome by transferring her to an eight hour day shift.    [Click here]

 


 A. Featured Case: The Ontario Court of Appeal has held that a disabled employee who was wrongfully dismissed was entitled to damages of $246,000 plus costs of $40,000. The employee, who had been earning $12.85 per hour, had, in the words of the court, been belittled, isolated, humiliated and made to suffer the effects of her disability (a sudden and unexplained onset of deafness) to the greatest extent possible. The employer’s conduct was deliberate, malicious and designed to force the employee to quit a job that she had held for 16 years.   

In Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (CanLII), the Ontario Court of Appeal considered an appeal from a wrongful dismissal decision of the Superior Court of Justice dated August 7, 2015.

The employee, who had worked as a recruiter and trainer, suddenly became completely deaf from what was believed to be a virus. The condition proved to be irreversible. Almost immediately afterwards, the General Manager and the employee’s supervisor commenced a campaign of abuse against the employee designed to force her resignation. “In addition to public belittling, harassing and isolating [the employee] in ways relating to her disability, [the employer] not only denied [the employee] any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear.” After six months, the employee was terminated on what the court found to be baseless grounds.

At the time of her termination, the employee was earning $12.85 per hour. She was escorted out of the office in front of her co-workers. Her ability to qualify for Employment Insurance benefits was delayed because the reason for her termination was wrongfully stated as insubordination and wilful misconduct. The employee, who was 56 at the time, was largely unsuccessful in mitigating her losses.

The employer did not defend the action and was noted in default. The motion judge, after considering the employee’s uncontradicted evidence along with submissions from both counsel, granted judgment in favour of the employee in the amount of $113,782.79, plus $40,000 in costs. On appeal, the Court of Appeal increased the total damages to $246,049.92 plus the $40,000 in costs.

The employee’s statement of claim had sought $240,000 plus an amount to compensate the employee for the loss of collateral benefits. The Court of Appeal limited the employee’s recovery to those amounts on the basis that the court did not have jurisdiction to award damages that exceeded the amount claimed in the statement of claim.

The motion judge had decided that the notice period should be 20 months plus a further four months in “Wallace damages” to compensate the employee for the manner of dismissal. The Court of Appeal did not interfere with the 20 month assessment.

The motion judge had awarded $20,000 in respect of losses arising out of the infringement of the employee’s Code rights including restitution for injury to dignity, feelings and self-respect. The Court of Appeal increased that amount to $40,000.

Damages for intentional infliction of mental suffering are generally awarded where an employer’s conduct was flagrant, outrageous, calculated to harm the employee and actually caused the employee to suffer a visible and provable illness. The motion judge had awarded $11,300 in damages to cover the employee’s costs for psychological and cognitive behavioural therapy sessions related to a resulting adjustment disorder with mixed anxiety and depressed mood. The Court of Appeal awarded an additional $10,440 for therapy costs on the basis that the motion judge erred in failing to consider non-pecuniary losses flowing from the intentional infliction of mental distress. It also awarded an additional $5,000 to address the employee’s pain, suffering and loss of enjoyment of life attributable to the employer’s conduct.

Aggravated damages may be awarded to address an employer’s unfair or bad faith conduct. The motion judge had declined to make such an award because he considered that there was an overlap between this category of damages and the enhanced notice payable under the Wallace principle. The Court of Appeal agreed that while there was some overlap between the two heads of damages, the motion judge had erred in holding that there was a complete overlap given the employer’s extreme bad faith and unfair treatment. The Court of Appeal awarded $70,000. for that bad faith conduct. From this it deducted the four months ($8,400) that had been awarded for Wallace damages.

In addressing the issue of aggravated damages, the Court of Appeal commented:

In the immediate lead up to her dismissal, [the employee] was confronted in front of an estimated 13 other employees, yelled at and called a “goddamned fool”. She was then informed of her termination for a senseless reason. Paperwork had been prepared by the company that was designed to deprive her of various legal rights. When she would not sign, she was not given the money then owed her. She was further humiliated by having to gather her belongings and leave under the stares of co-workers.

The employee had also sought punitive damages. The Court of Appeal stated that “the same conduct underlies the awards under both punitive damages and damages for conduct in dismissal. However, … what justifies punitive damages ultimately is the conclusion, in exceptional cases, that compensatory damages are simply insufficient to respond to the conduct being addressed.” It agreed with the motion judge that this was such a case. It stated that here, the employer’s conduct in relation to “a highly regarded, long-term, faithful employee who became profoundly disabled late in life, can only be described as a marked departure from any conceivable standard of decent behaviour. Such conduct deserves punishment on its own. The imposition of punitive damages is necessary for the purposes of denunciation, deterrence and retribution.” It increased the punitive damages from the $15,000 assessed by the motion judge to $55,000.

In his concluding comments, Justice Epstein, writing on behalf of the Court of Appeal, stated:

While I would allow the appeal and increase the damages as indicated above, it is important to remember that I have determined the amounts I would award in relation to the various heads of damages in light of my conclusion that the aggregate amount this court can award is limited by the total amount claimed in the statement of claim.”

The awarding of damages for improper employer conduct is addressed in section 14:700 of the Illness and Absenteeism manual and its supplement.


B.     Recent Decisions of General Interest

1. An employer was found to have voluntarily waived solicitor-client privilege regarding a confidential “labour-relations” report when it relied on portions of the report to provide background context to a matter that was before the British Columbia Labour Relations Board.   

In British Columbia Emergency Health Services, 2017 CanLII 19002 (BC LA) (Pekeles), the union sought disclosure of a confidential report that had been commissioned by the employer. The Report found in part that a previous employer investigation involving two bargaining unit employees had been mishandled. As a consequence of the Report, the employer unilaterally paid each employee $15,000 to address potential human rights obligations.

The employer had advised the union of the intended payments but the union refused to concur without having an opportunity to review the Report. The employer refused to provide the Report on the basis that the Report was privileged. The union then  grieved that the employer had interfered with its exclusive bargaining rights when it dealt directly with the employees, and it sought production of the Report in that context.

While the adjudicator found that the Report was privileged, the majority of it was subject to production because the employer had earlier disclosed, and thereby waived, a portion of the Report.

This case is instructive, for the statutory declarations that were filed by the employer and the investigator detailed critical aspects of both the relationship and the investigative undertaking that supported a finding that the Report was protected by solicitor-client privilege. The investigator had been acting as legal counsel rather than merely as a fact finder.

The arbitrator found that the Report was relevant to the union’s grievance, for it explained why the employer proceeded as it did when it made the monetary payments to the two employees.

Arbitrator Pekeles also concluded that the employer had voluntarily waived solicitor-client privilege with respect to at least part of the investigator’s advice when it relied on portions of the Report to provide background context to assist the Labour Relations Board in considering an earlier complaint filed against the union by one of the two employees. The arbitrator’s decision regarding waiver reiterates the principles set forth in section 10:412 of the Illness and Absenteeism manual, and reinforces the view that a party cannot elect to disclose only certain portions of a privileged document.

The employer had in the alternative argued that the Report was protected from disclosure on the basis of the Wigmore test of confidentiality. While the first three of the four Wigmore requirements had been met, the fourth had not, because in the arbitrator’s view, the benefit that would enure from privilege did not outweigh the union’s interest in the correct disposal of the litigation.

Disclosure of most of the Report was ordered.


2. An employee who failed to advise the employer that his continuing mistakes were due to a diagnosed disability (“ADHD”) was relieved from his obligation to do so because the nature of the mistakes should have caused the employer to make reasonable inquiries concerning the existence of an underlying disability.

In Bonte Foods Limited, 2017 CanLII 12517 (NB LA) (Breen), an employee with 14 years of service was terminated for violation of production safety policies while on a last chance agreement.

Following the employee’s termination, but prior to the arbitration, the employee presented a medical note from his doctor, dated after the termination. It stated that the employee had been diagnosed with Adult ADD approximately five years earlier and had been on medication ever since.

At arbitration, the union introduced a report from a Licensed Psychologist who was accepted as an expert witness in Psychology. Her report concluded that the employee met the diagnostic criteria for (ADHD) – Combined Type, as described in DSM-5. The expert opined in her report that she believed that “the mental health diagnosis of ADHD was a central participating factor to [the employee’s] work performance issues.”

The arbitrator stated that the employee “demonstrated no pattern of deliberate rule violations, and, as he was widely recognized as a very good employee, the only other reliable information for explanation is a causal connection with his ADHD. [The expert] testified that this diagnosis was consistent with the incidents described – an otherwise excellent employee having trouble following routine rules and making mistakes, when a distraction or new variable [presented itself].”

The expert also testified that “impulsivity increases with stress – she testified it can be a bigger factor than training … the employee has conditions of both AD and HD – he has impulsivity issues leading to unintentional actions. She stated that while medication helps, as does training, and that while he knows the rules – he can forget – it is a question of performance – it is not a matter of not understanding.”

The arbitrator stated that there was no doubt that he was “entitled to consider post-event evidence if it helps to shed light on the reasonableness and appropriateness of a dismissal, including subsequent event evidence as to an alleged human rights disability.” He found that a disability did exist and that there was a causal link between the disability and the impugned conduct.

The union and the employee had never told the employer, over the course of several disciplinary sanctions that led to the employee’s discharge, that his mistakes were linked to a known disability. Moreover, the union and the employee had never requested accommodation measures, including at the time that the parties entered into the last chance agreement. Nevertheless, the arbitrator suggested that the employer should have inquired, primarily because the employee told his supervisor when he was first diagnosed some five years earlier.

Perhaps of equal importance in ascribing knowledge to the employer was the continuing pattern of mistakes made by the employee. The employee was “an excellent, if not a model employee.” The pattern of mistakes called for reasonable inquiries of the employee as to the cause of his observable problems. The arbitrator stated the evidence established that the employer “both knew and, if reasonable inquiries [were] made as to the several mistake events …, ought to have known of the [employee’s] disability as a related problem – as a causal link. [The employer] ought reasonably to have posed the questions: “What is going on? Is there a problem? Is what is happening linked to [a] disorder?

In this case, by failing to engage in any accommodation inquiries, and to not take any active steps to inquire into or seek information about [the employee’s] disorder, or to ask as to whether his evident problems might inform a decision to continue to employ him, [the employer] breached the procedural aspect of the duty to accommodate …

In considering the issue of remedy, the arbitrator commented that the failure of the employee and the union to bring to the employer’s attention a claim of linkage between his disabilities and his impulsive behaviours informed in part the remedy being imposed. The employee was reinstated with compensation for lost income and benefits. However, a damage award was not justified given the disclosure issues that were present. The arbitrator also directed that efforts were to be taken between the parties to seek to implement employment based strategies to assist the employee in his workplace re-entry, with any costs to be shared by the parties. He further directed that the employee, as a condition of continuing employment, “follow any medical program prescribed for him by his personal physician or as may otherwise be implemented through a multi-party process as settled upon to assist him in his re-entry into [the] workplace.”

The obligation of an employee to disclose an underlying disability, along with the employer’s obligation to investigate where the facts suggest the possibility of an underlying disability, are addressed in section 14:300 of the Illness and Absenteeism manual and its supplement.


  3. In reinstating an employee who had been improperly terminated pursuant to a deemed termination clause, the arbitrator reduced the employee’s entitlement to retroactive compensation by a percentage corresponding to the percentage of time that the employee had been absent from work due to illness.  

In Keystone Agricultural and Recreational Centre, Inc., 2017 CanLII 79675 (MB LA) (Kersey), the employee was terminated after having missed 36 continuous days of work. The employee had been regularly communicating her pending absences by text message despite having been repeatedly told that she was to telephone if she could not report for work.

Included in the 36 days that were missed were four continuous days where no notification was given (March 2, 3, 4, and 5). The employer did not take issue with the lack of notification on those four days until it terminated the employee’s employment on March 30, 2017.

The employer relied on Article 10.04 of the collective agreement. It provided:

10.04 Seniority and employment shall terminate when the employee:

(a) is absent in excess of three (3) working days without notifying the Employer unless impossible to do so.

The requirement to notify was set forth in Article 14.04 of the collective agreement:

14.04 An employee who will be absent due to illness or injury must inform their Supervisor or the General Manager prior to the commencement of his next scheduled shift or as soon as reasonably possible thereafter.

The issue to be determined was whether the employee had been absent for four or more days without notifying the employer. After having considered several dictionary definitions, the arbitrator accepted that the most common meaning of “notify”, and the meaning to be applied in these circumstances, was “to make known.”

The employee had regularly notified the employer of her illness during the period from February 9 to March 1, 2017. There was however no satisfactory evidence of notification having been given with regard to March 2, 3, 4 and 5. Notification resumed on March 6, and while not always daily, continued throughout the period from March 6 until the employee’s termination when she reported for work on March 30.  The issue was whether a failure to notify the employer on March 2, 3, 4, or 5 triggered the operation of the deemed termination provision. The arbitrator held that it did not.

In summary, it is my view that the [employee] did notify the Employer repeatedly, in accordance with the requirements of Article 10.04 (a), and that her silence on March 2, 3, 4 and 5 did not trigger the operation of that Article.

While the grievance was allowed, the arbitrator concluded that given the employee’s attendance record, it would not be “just and equitable” to require the employer to provide compensation to the employee “at a level which assumed an attendance record not previously achieved by the [employee].” He therefore ordered that the employee should be paid an amount equivalent to 65% of the amount she would have earned from the date of her termination to the date of her reinstatement to active employment.

The law relating to deemed termination clauses is considered in section 16:300 of the Illness and Absenteeism manual and its supplement.


 4. An employee who resigned after being told that her termination would be a virtual certainty was successful in having her resignation declared to be invalid.

In Reena, 2017 CanLII 21147 (ON LA) (Tims), the employee resigned her employment after the union advised her that it was a virtual certainty that she would be terminated if she did not resign. The union assisted her in writing and presenting the letter of resignation. The morning after she and the union provided the letter to the employer, the employee contacted the union representative, told him that she should never have listened to him and that she wanted her job back. The employer was advised but it refused to allow her to withdraw her resignation.

The arbitrator cited the “dual element test” that has generally been relied on in determining such matters:

The law in this area is quite clear. In order that an employee be found to have effectively resigned her employment it must be demonstrated not only that she had a “subjective intention” to resign but also that this intention be confirmed by some “objective conduct”. The concern that underlies this doctrine is that resignations frequently are offered in the heat of the moment or at times of some personal stress and that they may not express the employee’s real wishes. Consequently arbitrators have looked at conduct over and above the expression of a desire to resign employment in order to satisfy themselves that the intention to resign is one which is continuing and real.

… The signing and submission of a letter of resignation, the return of employer property and the retrieval of personal belongings from the workplace may, in appropriate circumstances, be viewed as objective confirmation of an intent to resign. Whether or not that is so, however, is a determination to be based on the evidence in its entirety. While the [employee’s] conduct must be viewed against the fact that she had the benefit of her union’s representation at the time, I accept the union’s submission that the immediacy and the speed with which the relevant events unfolded at a time of personal stress upon learning that discharge was imminent must also be considered in assessing whether the objective confirmatory conduct required in the dual element test is absent here as alleged. Having considered the specific circumstances before me, I accept the union’s argument that the [employee’s] actions [on that day] do not objectively confirm a subjective intent to resign. Notably, unlike [some other cases], the evidence establishes that the employee’s almost immediate next step was to seek to withdraw her resignation … It is my conclusion here … based on all of the evidence before me that a subjective intention to resign was not confirmed by objective conduct.

The resignation was found to be invalid because the objective component of the dual element test was not satisfied.

Issues related to the validity of employee resignations are considered in section 14:410 of the Illness and Absenteeism manual and its supplement.


 5. An employer was found to have discriminated against an employee when it denied her an unpaid leave to care for her autistic child during the child’s summer vacation.  

Yellowknife (City), 2016 CanLII 19718 (NT HRAP) (Toner) considered whether the employer’s denial of a family leave amounted to a discriminatory act.

The employee’s child had been diagnosed with autism spectrum disorder. The employee had asked to have the summer off to care for her child. The employer refused the request and instead, proposed schedules which would allow the employee to work evenings and weekends. That proposal was rejected by the employee.

The employee was the primary caregiver. She and her husband had arranged their schedules to care for their child, and in doing so, they anticipated that the employer would grant the requested leave. When it did not, the employee resigned her employment, believing that she had no other choice.

The adjudicator first considered whether the employee had established a prima facie case of discrimination based on family status. It adopted the test set out in Canada (Attorney General), 2014 FCA 110 (CanLII):

… the individual advancing the claim must show (i) that a child [was] under his or her care and supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

The parties agreed that the first part of the test had been met. In considering the second branch of the test, the adjudicator stated:

The second branch of the test requires a distinction between childcare activities that engage legal responsibilities from those which constitute personal choice. Human rights should not be trivialized by protecting activities such as dance classes, sports events, family trips or extra-curricular activities …

Voluntary activities are distinguishable from fundamental childcare needs or immutable characteristics which the law is designed to protect. The types of childcare activities that will trigger a legal obligation are those which a parent cannot neglect without engaging legal liability. If the obligations were neglected, the parent could, for example, face criminal charges or intervention by child protection authorities.

In this case, the Northwest Territories Disabilities Council and two doctors had written letters in support. Rather than make inquiries, the employer was dismissive. The adjudicator stated that the employer “…chose instead to presume that they understood the childcare issue, and to uncharitably misinterpret the employee’s comments.” The second part of the test was met.

In considering the third branch of the test, the adjudicator stated:

The third branch of the test requires an inquiry into the [employee’s] efforts to meet her obligations through reasonable alternative solutions, including solutions other than workplace accommodation … The [employee’s] efforts to make an arrangement with [the employer before she went full time some two years earlier] demonstrate an intention to address her childcare issues before she went full time … The [employee] also made efforts to coordinate with her husband’s schedule.

The adjudicator noted that the employer offered schedules that would work around the husband’s schedules. “From the [employer’s] perspective, it was a simple matter of one or the other parent being available, and the [employee] rejected an obvious reasonable solution … [but] the [employee] was the child’s primary caregiver, as the parent who researched his condition and met with the professionals regularly. She was the one who had the most success socializing her child, and who offered the best chance of allowing him to function. She was better equipped than her husband to take on these full-time responsibilities.” The third branch of the test had been met. 

The fourth branch of the test required that:

The underlying context of each case in which the childcare need comes into conflict with the work schedule must be examined so as to ascertain whether the interference is more than trivial or insubstantial.

The fourth branch of the test had also been met. The employee “was facing work schedules that would interfere with her obligations in a way that was more than trivial or insubstantial.”

The adjudicator then considered whether the employer had established a bona fide occupational qualification for the employee to work the evenings and weekends that the employer had identified. He commented that nothing had changed since the prior summer when the employer had granted the employee’s request to take the summer off. The employee’s functions as a bookings clerk were not so specialized that they could not, for the most part, be transferred to casual cashiers. [The employee’s] request for the summer off would not have imposed an undue hardship on an organization with the size and capacity of the [employer].

Finally, the adjudicator considered whether the employee did her part in the search for suitable accommodation:

In this case, the [employee] may not have had the right to expect a perfect solution, but her employer expected her to accept an inadequate solution … The search for accommodation did not fail because the [employee] would accept one and only one solution. It failed because the [employer] neglected to take a remedial approach and became entrenched in its refusal to accommodate.

The employee’s remedy was addressed in Yellowknife (City), 2016 CanLII 87422 (NT HRAP) (Toner). Her wage recovery for wages lost as a consequence of her quit were reduced from nine to six months because of her failure to fully mitigate her loss. The employee was also awarded $15,000 for injury to dignity, feelings and self-respect, along with $5000 in exemplary damages on the basis that the employer’s conduct was wilful and harsh and persisted over a period of months.

The obligation of an employer to provide childcare leave is addressed in section 7 C of the Illness and Absenteeism supplement.


 6. An arbitrator upheld the termination of two custodial employees who were discovered smoking marijuana in a parked car during their work shift. 

In University of Windsor, 2017 CanLII 9594 (ON LA) (Gedalof), two university custodians working the night shift were apprehended by campus police smoking marijuana in a parked car. They had already punched in for the start of their shift. The central issue for the arbitrator was whether he ought to exercise his discretion to substitute a lesser penalty for the discharges that had been imposed by the employer. In considering the issue, arbitrator Gedalof stated:

There is no simple formula that can be applied in determining the appropriate penalty in the cases of illicit drug use at work. What arbitrators have consistently found, though, is that the absence of candour by the [employee] when confronted with respect to her or his drug use is a significant aggravating factor, since it undermines the trust relationship between employer and employee, and gives rise to a concern with respect to the employee’s rehabilitative capacity. The undermining of this trust becomes more significant where the position is either highly safety sensitive, or unsupervised.

… In assessing the mitigating factors in the instant case, I find that I cannot give any significant weight to the [employees’] post-discharge participation in drug treatment programs. There is simply no medical evidence before me to support the conclusion that either [employee] suffers from an addiction, that their misconduct was causally related to that addiction, or that either [employee] has addressed effectively such an addiction through treatment … [There] was nothing before the employer to suggest that the [employees’] use of marijuana was anything but recreational, and the absence of any substantial evidence to the contrary endured through to the end of the hearing.

Nonetheless, both [employees] have substantial service with the employer; approximately 17 years at the time of their discharge. Neither [employee had] any significant history of discipline, and both appear to have been good performers. Further, I have found that the janitorial position cannot be characterized as highly safety sensitive … Absent any significant aggravating factors, even in the absence of an underlying disability, these factors point strongly toward providing the [employees] with a second chance and substituting a lesser penalty.

However, in the instant case I find there are significant aggravating factors that must also be given weight in the exercise of my discretion. First, the evidence establishes that the janitorial position is effectively unsupervised. It is therefore a position that requires a significant degree of trust. Second, I find that from the time of the incident through to the conclusion of the hearing before me, the [employees] have sought to mislead the employer with respect to the degree of their culpability. They were, in short, anything but candid. They displayed a willingness to lie about the circumstances leading up [to] their termination that was transparent and highly troubling … I find that the manner in which the [employees] have conducted themselves has fundamentally undermined the trust relationship necessary for the maintenance of the employment relationship.

The grievances were dismissed.

Issues related to illicit drug use are considered in Chapter 15 of the Illness and Absenteeism manual and its supplement.


  1.  An arbitrator held that a last chance agreement that reduced the employee to probationary status and subjected him to a drug testing protocol did not breach the Ontario Human Rights Code. A further provision acknowledging that the employee had been accommodated to and beyond the point of undue hardship was also held to be valid.  

In Fanshawe College of Applied Arts & Technology, 2017 CanLII 18031 (ON LA) (MacDowell), the employee was terminated for the second time following “his absence from work caused by his addiction to drugs and alcohol”. The first termination had occurred five years earlier and was ultimately resolved by way of a “settlement and arbitration award” that provided the employee with one last chance. The comprehensive and well-crafted agreement is set out in its entirety.

The union challenged the enforceability of the settlement and award on the basis that its terms “must yield to the dictates of the Code” so that in its view, it “did not matter that the parties have agreed to terms that purportedly authorize or justify the discharge, or that the parties have signed [the agreed] “Releases”, or that the terms of the Settlement/Award confirm that the [employee] was fully accommodated …”

The union’s challenge focused on three specific provisions as being void and unenforceable:

  1. the reduction of the employee to probationary status;
  2. the drug testing protocol; and
  3. the provision that acknowledged that the employee had been accommodated to and beyond, the point of undue hardship.

The arbitrator ultimately found that the Settlement/Award was not unlawful in whole or in part and that the return to work arrangements that were concluded and “then transformed into an award did not breach the Human Rights Code. The employer was entitled to rely upon that foundation to effect a termination of the [employee’s] employment.” The Settlement/Award was binding and dispositive of the issues.

The enforceability of last chance agreements is considered in section 16:200 of the Illness and Absenteeism manual and its supplement.


8. An employer was not required to accommodate an employee who was suffering from Irritable Bowel Syndrome by transferring her to an eight hour day shift.  

In North York General Hospital, 2017 CanLII 6271 (ON LA) (Trachuk), the grievance alleged that the employer failed to accommodate the employee’s Irritable Bowel Syndrome (IBS). The employee contended that her 12 hour shifts and night shifts exacerbated her symptoms and that she needed to be assigned to an eight hour day shift.

The arbitrator found that the union had not established, on a balance of probabilities, that the employee’s IBS symptoms were exacerbated by 12 hour shifts. The union had failed to establish a prima facie case of discrimination.

The grievance was dismissed. In doing so, arbitrator Trachuk commented that the obligation to accommodate is a continuing obligation and that the employer would have to consider accommodation if other factors in the workplace, such as uncertain breaks, were found to contribute to the employee’s symptoms and lost work time.

Matters related to the issue of accommodation are addressed in Chapter 14 of the Illness and Absenteeism manual and its supplement.