llness and Absenteeism.com - January 2019 Newsletter

In this edition you will find:

A.  Featured Case: An adjudicator should not rely on hearsay evidence when making central or critical findings of fact, for the important value of procedural fairness overrides the discretionary authority of arbitrators to accept such evidence. Here the employer was found to have acted egregiously and arbitrarily when it refused to accept 28 medical notes that the employee had provided over a two year period. The employer had also erred when it gave no meaningful consideration to the employee’s request to be accommodated by being permitted to work from home.    [Click here]

B. Recent Decisions of General Interest

1. A change in business circumstances entitled an employer to request further medical information to ascertain if it could continue to accommodate a disabled employee who was suffering from multiple sclerosis. The employee’s refusal to supply the information did not however provide the employer with grounds to impose discipline.   [Click here]    

2.  An employer was entitled to consider factors such as reliability, ability to work in stressful situations, attendance, accuracy of work and computer skills when it awarded a shipper/receiver position to an employee with lesser seniority than the grieving employee. The collective agreement stipulated that vacancies were to be awarded “on the basis of qualifications, skills and ability” and that where ”between two or more employees there exists equal qualifications, skills and ability, seniority shall be the deciding factor.”  [Click here] 

3. A request to compel production of privacy-related employment documentation, including T4s and income tax returns, was rejected in favour of the issuance of an order for particulars, with the arbitrator reasoning that the information that would be provided by the issuance of such an order would be less intrusive in nature.     [Click here]      

4. In an Alberta decision involving a complaint of sexual harassment, the Tribunal relied on an Alberta Court of Appeal decision which had confirmed that the analysis for determining the quantum of damages in human rights proceedings was two-fold; with the Tribunal firstly characterizing the objective seriousness of the conduct, and then secondly, recognizing the particular effect on the employee who had advanced the complaint.    [Click here]  

 

 


 A.  Featured Case: An adjudicator should not rely on hearsay evidence when making central or critical findings of fact, for the important value of procedural fairness overrides the discretionary authority of arbitrators to accept such evidence. Here the employer was found to have acted egregiously and arbitrarily when it refused to accept 28 medical notes that the employee had provided over a two year period.

In Ontario (Community Safety and Correctional Sevices), 2017 CanLII 52722 (ON GSB) (Misra), the employee alleged that the employer failed to accommodate her when she was able to return to work from sick leave, and/or that it improperly denied her short term disability benefits.

The employee was a Corrections Officer. She was being treated for chronic and serious stress. She suffered from trichotillomania, a form of an anxiety disorder which manifests with the patient picking hair off her body as a result of anxiety. Her eyebrows exhibited crusting and hair loss. The criteria for that disorder are as set forth in the DSM IV.

The employee was also being treated for an adjustment disorder with mixed anxiety and depression.

The employee’s condition was exacerbated (vomiting and bowel issues) by having to deal with Corrections Officers that had caused her difficulty in the past. Inmate contact caused her similar difficulties. These were factors that were to be considered in fashioning an accommodation.

Despite having been provided with 28 medical notes over a two year period, the employer contended that the employee was abusing her sick leave. That perception persisted because of reported comments that the employee was said to have made at a return-to-work meeting, wherein she allegedly said that following her return to work, she would work for the 20 days required to re-qualify for sick benefits and would then immediately take further sick leave. The employee denied making that comment and the employer did not call evidence in regard to the issue.

The adjudicator accepted the union’s submission that “an adjudicator should not rely solely on hearsay evidence when making central or critical findings of fact.” The employer sought to rely on notes that were taken at the meeting in issue, but there was no direct employer evidence regarding the notes:

The employer seeks to rely on some notes made of the return to work meeting. However, the author of those notes was not called to testify, and as such, the document has not been identified and proven. The union did not agree to the notes being admitted. Since no one who had attended that meeting testified in this proceeding, the union has not had the opportunity to cross-examine any employer witness about it. The [employee], who was present, has denied that she made the comment. In the absence of any evidence to the contrary, I must accept the [employee’s] evidence.

The adjudicator also cited the decision of arbitrator Luborsky in Peterborough Victoria Northumberland & Clarington Catholic District School Board, 2011 CarswellONT 3128, where he had stated:

Where an employer has the burden to establish cause for issuing discipline, and substantially all of the evidence to support the discipline is hearsay, the important value of preserving procedural fairness overrides the discretionary authority of arbitrators to accept such evidence.

While adjudicator Misra noted that this was not a case of discipline, she stated that the onus was on the employer to establish why it refused the employee’s requests to utilize her sick leave credits.

The employee was also alleged to have made a similar comment at a step 2 grievance meeting. The arbitrator refused to consider that comment based on the arbitral law which provides that privilege generally attaches to comments made during grievance meetings.

The employee, who was under duress because of the employer’s threat to terminate her employment, agreed to undergo an Independent Psychological Assessment by a psychologist for the employer. She was administered the Beck Depression Inventory and the Beck Anxiety Inventory tests. They revealed that the employee was suffering from a severe level of anxiety. Despite those findings, the employer’s psychologist stated he did not believe that the employee would meet the DSM IV criteria for the diagnosis of a psychological disorder. The psychologist also opined that the employee should have no difficulty working with inmates. These findings did not reflect the views of the employee’s doctor.

The employer did not call the psychologist to testify at the hearing.

 The employee subsequently saw a psychiatrist. He diagnosed the employee as suffering from major depression, anxiety and PTSD. He also advised that the employee had cognitive/mental restrictions in the moderate to severe range. He opined that she had all of the symptoms of a major depressive disorder. He prescribed medications, counselling and psychotherapy. He recommended that she be off work for an indefinite period of time because her functional capacity had decreased as a result of her medical conditions.

Eleven grievances had been filed. The employer had accepted some but rejected several others. Two of these grievances alleged that the employer had failed to accommodate the employee when she was able to return to work. The adjudicator stated:

There was no dispute between the parties that the initial onus is on the union to establish that the [employee] was entitled to accommodation. Once that requirement has been met, the onus shifts to the employer to establish that accommodating [the employee] would have caused it undue hardship. The test was set out in North York General Hospital …, 2917 CarswellOnt 2530 (Trachuk), as follows:

The [union] has the onus of making out a prima face case of discrimination. If it succeeds, then the onus shifts to the employer to prove that it provided accommodation to the point of undue hardship. In Moore v. British Columbia (Ministry of Education), 2012 SCC (CanLII), 2012 (SCC) 61 (S.C.C.), the Supreme Court referred to the three part Meiorin test to determine whether a party has made out a prima facie case of discrimination:

As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the [employer] to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. 

The adjudicator referenced Ontario (Ministry of Community & Social Services), 1996 CarswellONT 545 (Ont. Div. Ct.) where the court, in a judicial review application, held that the Grievance Settlement Board had “erred in law when it found that the onus lay upon an employee to demonstrate that his needs could be accommodated by his employer without undue hardship.”

In commenting on the employer’s conduct in the instant case, the adjudicator stated:

It seems apparent from the documentary evidence that no sooner would a doctor’s note or letter be provided before [the employer] would turn around and tell the employee that the information was not good enough. Yet it took them awhile to say what they wanted. Even when [the employee’s doctor] would answer their questions, they would turn right back and say that it was insufficient, or was unclear, or would seek further clarification. What the two [employer representatives] managed to do … was to ask an inordinate number of questions while avoiding getting [the employee] back to work.

In this particular instance, there was no evidence before the adjudicator “to explain why those acting for the employer took so long to consider the accommodations and kept up the barrage of requests for more medical notes. There is also no evidence to explain why the employer could not have accommodated [the employee’s restrictions on her] return to work.” The adjudicator cited Ontario (Ministry of Community Safety and Correctional Services), 2014 CarswellOnt  (Dissanayake) where the Grievance Settlement Board addressed requests for medical certificates for absences due to sickness. “In that case, one person who had direct involvement in the process had testified, but the decision-maker had not. The board concluded that the employer had not presented sufficient evidence that it had [reasonably exercised its discretion under the collective agreement], in part because the person who had made decisions in that regard had not testified … [Similarly, in this case,] none of the individuals who appear to have been involved and/or exercis[ed] their discretion regarding [the adequacy of the employee’s medical notes] have testified. As such, I have no way of ascertaining whether the [employee’s] particular circumstances were given meaningful consideration in the process.”

The adjudicator also commented that the management personnel who had denied the employee’s sick leave claims had not testified and therefore, there was no evidence whatsoever as to why the employer, in the face of the medical notes provided to them, continued to deny the employee access to her sick leave credits. Relying again on the aforecited decision of arbitrator Dissanayake, adjudicator Misra stated that the Dissanayake decision stood for the proposition that “where those making the decisions to require more medical information, and to deny access to [sick leave credits] do not testify, the Board may conclude that the employer has not presented sufficient evidence that it [properly exercised its discretion].”

The adjudicator concluded that the employer’s repeated demands for medical notes, which were largely ignored or not accepted, were excessive and amounted to harassing behaviour. The adjudicator ordered that the employer compensate the employee for the cost of many of these reports.

The accommodation grievance was upheld, with the adjudicator commenting that “the employer’s actions exacerbated the [employee’s] anxiety at a difficult time in [her] medical and personal life.”

The adjudicator concluded that the employer’s conduct was “egregious, arbitrary and closed-minded.” The employer’s actions caused the employee “to be much more anxious, upset and fearful about her employment situation …” The employee’s medical evidence was to be preferred, for the employer’s psychologist was not called to testify and defend his report.

The adjudicator found that the type of discrimination that the employee experienced fell closer to the higher end of the damage spectrum with respect to seriousness. An award of monetary compensation for injury to dignity, feelings and self-respect was warranted. The adjudicator however granted the request of the parties that they be permitted to attempt to resolve the matter of damages, failing which the adjudicator would resolve all outstanding matters.

The matter of hearsay evidence is considered in section 11:201 of the Illness and Absenteeism manual and its supplement.


B.     Recent Decisions of General Interest

1. A change in business circumstances entitled an employer to request further medical information to ascertain if it could continue to accommodate a disabled employee who was suffering from multiple sclerosis. The employee’s refusal to supply the information did not however provide the employer with grounds to impose discipline.  

In Bristol Machine Works Ltd., 2017 CanLII 75987 (ON LA) (Tremayne), the employee was diagnosed with Multiple Sclerosis (MS). His neurologist recommended that he return to work but only on the day shift. The employer accommodated that restriction. However, the employer subsequently requested that the employee provide additional medical information after having been back at work for four months. The letter stated:

Unfortunately we cannot accommodate your request to work regular dayshifts. To properly accommodate your condition the employer will need more specific information related to your functional limitations and safety issues  which prevent your ability to perform your Machinist duties between 3pm and 11pm as well as a timeframe for the accommodation. If you are unable to access adequate information, appropriate accommodation may not be provided.

The union representative made several requests to convene a meeting where they might discuss the type of information that the employer was seeking but the employer was unresponsive. Finally, the employer simply scheduled the employee on the normal shift rotation. The employee worked only three hours of his first eight hour shift on the afternoon shift because he believed that to do otherwise would conflict with the medical advice that he had received from his neurologist. The employee was then sent home for the balance of the shift. He was told that if he did not bring in the requested medical information, and did not work the regular shift hours, he would be disciplined.

The employee was restored to steady day shifts after having been assigned to the rotating shift pattern for a one week period.

The arbitrator stated that the employer was required to accommodate the employee to the point of undue hardship:

The employer has the onus [to] show that accommodation has been provided to the point of undue hardship. The evidence required to prove undue hardship must be objective, real and direct, so it is reasonable to expect the employer to provide facts and figures to support such a claim. It is not up to the person with a disability to prove that the accommodation can be accomplished without undue hardship.

The employer had advanced two reasons for the request for more medical information:

1. Firstly, by the fall of that year, it had become more difficult to accommodate the employee on a steady day shift. Given that circumstance, it was reasonable to request more information. The arbitrator stated:

In my view, a change in business circumstances is a reasonable basis for an employer to revisit how it accommodates an employee. In this case, a seasonal change in attendance or a transition in work patterns could justify an employer’s decision to request more specific information from an employee whose accommodation plan consists of a steady day shift and not a regular shift rotation. In other words, although the employer’s duty to accommodate the [employee] to the point of undue hardship had not changed, it was reasonable for the employer to ask him for more specific information about his limitations and restrictions to see if it could continue to accommodate him.

2. Secondly, the employer had received a similar request from another employee:

[The employer] received a request from another employee who asked to be accommodated on regular day shifts. The note submitted by that employee was “weak” and very generic, so the employer decided to ask for more information in support of that request. The employer was justified in requesting additional information from [that] employee, because an employee who is requesting accommodation has an obligation to provide the employer (and the union) with information that is sufficient to disclose the nature of the problem, at least generally, as well as the accommodations that are required. It was reasonable for the employer to find that a weak, very generic note did not meet this basic, preliminary standard.

The employer stated that it did not want to discriminate against that second employee, so it decided to ask for more information from the grieving employee as well, and consequently both employees were given almost identical letters. The arbitrator considered that to be problematic because

the appropriate way to approach accommodation is on an individual, case-by-case basis. Each person’s needs are unique and must be considered separately, even if requests for accommodation are similar. The employer had been aware of the [grieving employee’s] condition for four months. Before he returned to work, the [grieving employee] had provided two notes from his neurologist and he had gone for a [Functional Abilities Evaluation]. The [grieving employee] was not like the other employee who had just presented a weak generic note, and it was not reasonable for the employer to treat him as if he [was].

Moreover, from the perspective of the [grieving employee’s] situation, the employer’s letter requesting the additional information is vague. He had already satisfied the employer’s request for medical information to support his initial request for accommodation before he returned to work [some four months earlier]. From his perspective, nothing about his condition had changed [in the four months]. So while the letter was appropriate for an employee who had submitted an initial request for accommodation and was at the early stage of the process, it was not relevant to the [grieving employee’s] situation.

The arbitrator commented that it is generally accepted that an employee who is seeking accommodation must act in a reasonable and cooperative way and that

This includes answering follow-up questions and providing additional information about restrictions or limitations where appropriate and as needed. Those questions or requests must in turn be related to the restrictions or limitations. It is reasonable to expect that any question or request should be detailed and specific, so that the connection to the ongoing accommodation and the situation in the workplace is clear. In my view, the [grieving employee] had already answered the very general questions in the [employer’s] letter before he returned to work [approximately four months earlier].

The employer testified that the questions it asked were intended to determine if its accommodation of the grieving employee to steady day shift could be modified, and if so, how. But, as the arbitrator noted, “… the [employer’s] letter does not request this specific information, and these more detailed questions were not asked clearly until the employer’s [subsequent] request for further medical information, which the [grieving employee] then satisfied in [a timely] letter from his neurologist …”

The arbitrator concluded that the employer erred when it returned the grieving employee to the regular shift rotation for the one week:

It is a widely held principle that failure to provide medical information is not a disciplinary offence. Personal health information belongs to the individual employee, and it is protected from disclosure unless the employee consents to its release. As a result, an employer cannot coerce an employee to produce medical information by threatening or imposing discipline. Failing to provide medical information may have consequences, but it cannot attract discipline. While the consequences can include a denial of sick leave benefits or a refusal to return an employee to work, in this case, the [grieving employee] was already being accommodated, and he had been working a steady day shift for four months when he received the [employer’s] letter. It was not appropriate for the employer to address the situation by returning the [grieving employee] to the regular shift rotation and by threatening and imposing discipline.

If a change in the workplace prompted the employer to re-examine how it accommodated the [grieving employee], then the onus to show that accommodation has been provided to the point of undue hardship still rests with the employer. The evidence required to prove undue hardship must be objective, real and direct and there is no evidence of this nature before me. The employer has not met this onus, and as a result, it breached its duty to accommodate the [grieving employee] when it returned him to the regular shift rotation [for the one week period].

The arbitrator directed that the grieving employee be compensated for all lost wages and benefits and that a related letter of warning be removed from his personnel file.

All aspects of accommodation are fully explored in Chapter 14 of the Illness and Absenteeism manual and its supplement.


 2.  An employer was entitled to consider factors such as reliability, ability to work in stressful situations, attendance, accuracy of work and computer skills when it awarded a shipper/receiver position to an employee with lesser seniority than the grieving employee. The collective agreement stipulated that vacancies were to be awarded “on the basis of qualifications, skills and ability” and that where “between two or more employees there exists equal qualifications, skills and ability, seniority shall be the deciding factor.”

In Varsteel Ltd., 2018 CanLII 50187 (BC LA) (Somjen), the grieving employee had applied for a posted position as a shipper/receiver. The collective agreement stipulated that vacancies were to be awarded “on the basis of qualifications, skills and ability. Whereas between two or more there exists equal qualifications, skills and ability, seniority shall be the deciding factor.”

The arbitrator acccepted that the successful candidate had, among other attributes, a history of reliability, with no absenteeism, no lateness and a strong ability to problem solve even in high stress situations while the grieving employee (who had much greater seniority), had a long history of absenteeism and lateness. The grieving employee had been warned or disciplined on several occasions.

The employer “relied on a number of cases which stand for the principle that the terms “qualifications, skills and ability” include not only technical qualifications such as education or certifications, but also the factors that the employer took into account such as reliability, ability to work in stressful situations, attendance issues, accuracy of work and computer skills. The union did not contest these principles, but argued that the [grieving employee and the successful candidate] were relatively equal. The arbitrator found that they were not.

The arbitrator concluded that it was appropriate for the employer to take these factors into account where they related to an employee’s reliability or responsibility. He concluded that the successful applicant was the superior candidate. The employee’s grievance was dismissed.

The impact of absenteeism on an employee’s work opportunities is considered in Chapter 17 of the Illness and Absenteeism manual and its supplement.


  3. A request to compel production of privacy-related employment documentation, including T4s and income tax returns, was rejected in favour of the issuance of an order for particulars, with the arbitrator reasoning that the information that would be provided by the issuance of such an order would be less intrusive in nature.

In Ontario (Health and Long-Term Care), 2017 CanLII 52714 (ON GSB) (Abramsky), the adjudicator issued a production order compelling production of the employee’s medical records. These were to be produced, subject to the “implied undertaking that documents disclosed as a result of a litigation only be used in connection with that litigation”. Such an implied undertaking is “designed to protect the confidentiality of a party’s documents.” As was stated by the Ontario Court of Appeal in Rossi, 1995 CarswellOnt 146 (Ont.C.A.):

The principle is based on recognition of the general right of privacy which a person has with respect to his or her documents. The discovery process represents an intrusion on this right under the compulsory processes of the court. The necessary corollary is that this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place.

The adjudicator rejected the issuance of a production order for T4’s and tax returns.  The employer had sought these documents to verify the employee’s outside part-time employment, for it was of the view that such outside employment may have contributed to her medical issues. This request was rejected, for at this point, the adjudicator did not find this category of confidential documents to be “arguably relevant”.

The adjudicator stated that the information that the employer was seeking could better be sought through a request for particulars. The employer may seek “particulars about the [employee’s] outside employment and the nature of that work, including physical demands and/or injuries. Although T4’s and tax returns would provide a list of other employers, there are privacy interests contained in those documents, and the information that matters is not the identity of those other employers but the nature of the work, including physical demands and/or injuries.”

The employer had also sought the following particulars in regard to discussions concerning the employee’s part-time employment:

a) when, where and to whom did the [employee] disclose that she was working on a part-time basis outside the [Ontario Public Service]?

b) to whom did the [employee] mention the part-time job during her interview for [employment with the Ontario Public Service?] What specifically did the [employee] say about the part-time jobs at that time?

c) When and how often did [the employee’s supervisor allow her] to adjust her working hours to let [her] leave early to go to her second job? What information did [the employee] provide to [her supervisor] to gain this flexibility in her paid hours of employment?

The adjudicator stated that the requested particulars were arguably relevant “because they go to the relationship between [the supervisor and the employee], and because they pertain to her secondary employment which, as set out above, I do find potentially relevant to the issues in this case.”

The issue of production of documents is fully considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.


 4. In an Alberta decision involving  a complaint of sexual harassment, the Tribunal relied on an Alberta Court of Appeal decision which had confirmed that the analysis for determining the quantum of damages in human rights proceedings was two-fold; with the Tribunal firstly characterizing the objective seriousness of the conduct, and then secondly, recognizing the particular effect on the employee who had advanced the complaint.

In Taste of Tuscany Ltd., 2017 AHRC 10 (CanLII) (Oviatt), the adjudicator set forth the damages to be awarded for several incidents of sexual harassment. Damages were assessed at $15,000. The adjudicator commented that in Alberta, the leading decision on general damage awards for discrimination was Walsh v. Mobil Oil Canada [2013 ABCA 238 (CanLII)]. The adjudicator stated that the Alberta Court of Appeal in Walsh confirmed that the analysis for determining the quantum of damages in human rights proceedings is two-fold:

(1) characterize the objective seriousness of the conduct;

(2) recognize the particular effect on the complainant.

The adjudicator cited Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858 as setting forth several factors to be considered in establishing the quantum of damages in cases of harassment:

1) the nature of the sexual harassment (verbal or physical)

2) the degree of aggressiveness and physical contact

3) the ongoing nature (duration) of the harassment

4) the frequency of the harassment

5) the age of the victim

6) the vulnerability of the victim

7) the psychological impact of the harassment on the victim 

The adjudicator also stated that the circumstances of this case would have resulted in a higher award than the $15,000 had the parties made submissions to that effect.

The issue of damages is addressed considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.