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Illness & Absenteeism - January 2021 Newsletter

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Welcome to the January, 2021 issue of the Illness and Absenteeism newsletter. In this issue, you will find:

A. Featured Case:

An employer who terminated an injured employee within her 90 day probationary period was found to have discriminated against the employee when it made no effort to accommodate the injury that she suffered in a “slip and fall” accident. The employer was ordered to pay the employee $20,000 in damages. [click here to read more ]

B. Other Decisions of General Interest

  1. A determination by a workers’ compensation board that an employee was permanently disabled and unable to perform his job was not a bar to a subsequent grievance that the employer had failed to accommodate his disability. [click here to read more]
  2. An employee’s termination was upheld where the employee absented himself from work despite the fact that his application for Family Caregiver Leave had not been approved pursuant to the Family Caregiver provisions of the Employment Standards Act (Ontario).The employee had not qualified for such leave, for he had not reduced his request to writing in accordance with the legislative requirements. Moreover, the medical certificate that he provided shortly before the arbitration was insufficient to support the requested leave. The termination was upheld pursuant to the deemed termination provision in the collective agreement.  [click here to read more]
  3. The disclosure of an employee’s occupational health record to outside counsel without obtaining the employee’s consent or an arbitral order violated the employer’s privacy policy as well as privacy provisions set forth in Ontario legislation, including PHIPA and OHSA.[click here to read more]

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A. Featured Case

An employer who terminated an injured employee within her 90 day probationary period was found to have discriminated against the employee when it made no effort to accommodate the injury that she suffered in a “slip and fall” accident. The employer was ordered to pay the employee $20,000 in damages.

In Copper River Inn, 2020 CanLII 88349 (ON LA) (Randall), the employee had a slip and fall at work on her fourth probationary shift. She suffered a significant workers’ compensation recognized injury. She was “still in pain and her mobility seriously compromised at the time of the hearing, which was fully a year later”

The employee was off work and was paid by WSIB for her three weeks of lost employment. She was scheduled for seven eight hour shifts following her return to work. The employee spoke to the employer’s General Manager and advised her that she could only work three shifts per week. As a result of a very real staff shortage, the employee was not accommodated and worked all seven shifts.

The employee was then scheduled to work a further five shifts. Arbitrator Randall found that despite having worked all of those shifts, the employee suffered from significant pain and had trouble moving as a result:

Despite the [employee’s] complaint, she was not accommodated and, as a result worked all of those shifts. … It was clear from the totality of [the General Manager’s] evidence that the scheduling of the [employee] was informed entirely by the employer’s crisis of staffing and without regard to either the [employee’s] needs (given the pain she was experiencing from her injuries from the fall) nor her wants (“something fairly easy”).

After having eventually contacted WSIB and having been examined by physio, WSIB imposed a condition that her shifts be modified to four hours per day. The employee was scheduled for a four hour shift but was advised that her next shift would be of eight hours duration. Before she reported for the eight hour shift, the employer advised the employee by telephone, that “it was not working”. When asked for clarification, she was advised that she was making a lot of mistakes and that other staff were complaining about her. She was informed at that point that her employment had been terminated.

The union alleged that “the employer’s complete failure to accommodate [the employee] beyond one four hour shift, let alone accommodating her to the point of undue hardship, [was] proof positive of discriminatory treatment”. It submitted that the employer’s case that the employee was unsuitable and did not meet its expectations was nothing more than a pretext. Arbitrator Randall stated:

…Even if I was to find that some of the [employee’s] shortcomings were made out, that evidence does not trump the obvious finding that the employer’s decision to end the [employee’s] employment was informed, at least in part, by its denial of its statutory obligation to accommodate the [employee’s] limitations. And that is sufficient to find discrimination … The employer was motivated, at least in part, by the prospect of having to accommodate the [employee’s] handicap, which it clearly had no desire to do so.

The arbitrator commented that the case was “egregious for its total lack of any inquiry by the employer of the [employee’s] health status and capacity to work full time shifts.” After having reviewed several authorities, she assessed damages at $20,000, payable within 30 days of issuance of her award.

The quantum of compensation awarded for an employer’s failure to accommodate a disabled employee is fully addressed in sections 14:701 and 14:702 of the Illness and Absenteeism manual and its supplement.


B. Other Decisions of General Interest

1.  A determination by a workers’ compensation board that an employee was permanently disabled and unable to perform his job was not a bar to a subsequent grievance that the employer had failed to accommodate his disability.

In Inland Kenworth, 2020 CanLII 89929 (BC LA) (Matacheskie), the employee grieved that the employer had failed to accommodate his disability pursuant to section 13 of the Human Rights Code of British Columbia. By way of a preliminary objection, the employer asserted that it amounted to an abuse of process for the employee to challenge the earlier decision of WorkSafeBC in this arbitration, for that entity had previously determined that the employee was permanently disabled and unable to perform his job due to his physical limitations and restrictions.

While engaged in the WorkSafeBC process, the employee was assessed and a decision issued (the “WorkSafeBC Decision”) stating that his workplace injury had “stabilized into a permanent condition.” The employee was ultimately awarded a monthly permanent disability of $994 with respect to his injuries. He did not appeal the decision, for in his mind, there was nothing to appeal.

Shortly thereafter, WorkSafeBC contacted the employer about a possible return to work. The employee’s surgeon advised that although there were some residual issues, the employee should try a return. The employer was not prepared to allow him to return given the WorkSafeBC decision.

The Union took the position that the decision was limited to deciding the amount and type of benefits that the employee was entitled to at the time the decision was made. It asserted that the substance of this application was whether or not the employer had a duty to accommodate the employee, and that question was not one that had been decided by WorkSafeBC.

The arbitrator commented that British Columbia and Nunavut were the only two Canadian jurisdictions that “did not provide a right to return to work with accommodations within their legislation granting authority to administrative tribunals handling workers’ compensation issues.” Consequently, WorkSafeBC could not adjudicate duty to accommodate issues or apply the Human Rights Code, and as a consequence, it did not inquire whether the employer could have accommodated the employee’s disability. Moreover, the finding of a permanent disability by WorkSafeBC “was subject to reassessment within WorkSafeBC’s internal processes”. The employer’s preliminary objection was dismissed.

On the merits of the matter, the employer asserted that the evidence supported its decision that the employee could not return to work without risk of re-injury. It cited several decisions that were said to establish that the impact of personal safety on the undue hardship analysis could be a consideration of paramount importance. Among the decisions cited were  Vancouver School Board, [1999] B.C.C.A.A.A. No. 365; Surrey School District No. 36, [2010] B.C.C.A.A.A. No. 87 and Keltic Seafoods Ltd., [2013] B.C.H.R.T.D. No. 42.

Arbitrator Matacheskie observed that the initial onus falls on the union to establish a prima facie case of discrimination. She stated that once that had been done, the burden shifted to the employer to justify its decision. It must show, on a balance of probabilities, that it was a bona fide occupational requirement, “meaning the decision was made in good faith based on a purpose rationally connected to the performance of the job. It must also show that accommodating the [employee] would result in undue hardship to the employer.”

The arbitrator commented that whether the employee could currently perform the work safely was “a determination that requires medical evidence from a doctor evaluating the specific job requirements against the employee’s physical condition.” Although the earlier medical information was insufficient, the employer had an obligation to inquire further and to ask for more medical information before denying the [employee’s] request to return to work.

While the medical evidence was insufficient to establish that the employee could return to work safely, it was sufficient to “trigger the need to re-assess”. The employer had not fulfilled its duty to accommodate. The parties were directed to “expeditiously obtain and review fulsome medical evidence informed by the actual physical requirements of the job and engage in meaningful discussions for a possible return to work for the [employee].”

Matters related to the interaction between the duty to accommodate and administrative decisions of a workers’ compensation board are considered in section 14:605 of the Illness and Absenteeism manual and its supplement.


2. An employee’s termination was upheld where the employee absented himself from work despite the fact that his application for Family Caregiver Leave had not been approved pursuant to the Family Caregiver provisions of the Employment Standards Act (Ontario).

The employee had not qualified for such leave, for he had not reduced his request to writing in accordance with the legislative requirements. Moreover, the medical certificate that he provided shortly before the arbitration was insufficient to support the requested leave. The termination was upheld pursuant to the deemed termination provision in the collective agreement.

In Ryam Tembec, 2018 CanLII 94339 (ON LA) (Wacyk), an employee’s termination was upheld when he absented himself from work despite the fact that his application for Family Caregiver Leave had not been approved.

The employee had initially applied for a five day “personal leave.” Despite a continuing request, the employee refused to divulge details as to why his family member (his sister), required his presence. He did however advise that he would be assisting the family member with her child care needs. When the employer informed  him that the legislation (section 49.3 of the Employment Standards Act of Ontario) obligated that employee to provide medical documentation establishing that  the leave was necessitated because the family member had a “serious medical condition”, the employee responded  that she  did not.. The employer then requested that the employee clarify his application by specifically noting that he was applying for “Family Care Giver Leave”. He did not. He was subsequently advised shortly before commencement of the requested leave that his failure to attend at work would result in him being considered to be AWOL and that he would be subject to discipline, up to and including termination. The employee later acknowledged that he knew when he left work that his leave had not been approved.

He was terminated when he returned to work following his one week absence. His termination was stated to be due to his having been absent without authorized leave contrary to section 12.03 (c) of the collective agreement. That section provided that an employee would lose all seniority if he was absent without permission for two consecutive days.

The arbitrator had directed the employee to provide his travel itinerary at the outset of the hearing. He did not, with the arbitrator stating that such failure was not determinative.

The arbitrator found that the employee did not meet either of the requirements necessary to entitle him to Family Caregiver Leave. Firstly, the legislation required that except in the case of an emergency, the employee must advise the employer in writing as to the type of leave that he was seeking. “Employees are required to put their intentions in writing so that employers do not have ‘to guess’ what they are”. And secondly, the employee had already advised the employer that the family member that he wished to support did not have a “serious medical condition”.

The employee had provided a medical certificate shortly before the arbitration. However, it fell short of what was required under the legislation. In that regard, section 68(2) and (3) provided that an employee was entitled to a leave of absence without pay to provide care or support to a [designated individual] if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition, A serious medical condition was defined to include a condition that is chronic or episodic. That certificate is to be provided as soon as possible.

The arbitrator noted that the Ministry of Labour Guide to the Act provided clarification on the interpretation to be given to the relevant provisions.

The arbitrator then commented on the insufficiency of the certificate that had been submitted at the hearing. The certificate was dated three months after the leave. There was no evidence regarding the reason for the delay. There was no indication in the certificate that its author was the family member’s treating physician. It was entirely possible that the information conveyed in the Certificate had been conveyed to the physician by the family member for the purpose of the hearing and that she had no independent knowledge of its content.

Arbitrator Wacyk stated that “had the medical certificate been provided in a timely manner, additional information and clarification could have been sought. In these circumstances, that opportunity does not exist.” Given the deficiencies in the medical certificate, she then considered the contents of the certificate in the context of other information then available. She stated that had there been an indication in the Certificate that “the family member been hospitalized or at least treated during the time at issue … I would be more inclined to find the medical certificate sufficient. However, in this instance, there is simply no indication the family member had been seen or treated for any serious medical condition during the time at issue”. In addition, the employee gave more than seven weeks’ notice of the requested leave. This suggested some lack of urgency to the situation [as] distinguished from circumstances where, for example, support related to a scheduled surgery will be required.” In addition to these considerations,  the type and level of activity of the family member during the relevant period “further undercuts rather than shores up the suggestion that the family member was experiencing a serious medical condition such as contemplated by [the legislation]. The medical certificate did not meet the requirements of section 49.3(2) of the legislation.

The employee had alleged that his termination had amounted to an act of reprisal. The arbitrator dismissed that allegation based on the facts. In doing so, she stated that the legislative protections against reprisal “are there to act as a shield to employees,  rather than to be used as a sword to intimidate employers from taking legitimate disciplinary action.”

The union had argued that the effect of Article 12.03 would at most have simply meant that the employee would have fallen to the bottom of the seniority list. The arbitrator stated that reading Articles 12.01 and 12.03 together meant that Article 12.03 was intended to result in a deemed termination of employment when the enumerated conditions were met. “Article 12.03 of the collective agreement is a specific penalty provision and it “was intended by the parties to result in a deemed termination of employment when the conditions were met.”

The grievance was dismissed.

The issue of blameworthy or culpable absenteeism is considered in sections 17:201 to 17:207 of the Illness and Absenteeism manual and its supplement.


3.  The disclosure of an employee’s occupational health record to outside counsel without obtaining the employee’s consent or an arbitral order violated the employer’s privacy policy as well as privacy provisions set forth in Ontario legislation, including PHIPA and OHSA.

In Orillia Soldiers Memorial Hospital, 2020 CanLII 91949 (ON LA) (Abramsky), the employee grieved that the Hospital breached her privacy rights when it directed its Occupational Health department to release her Occupational Health file to outside counsel without her consent or an arbitral order to do so. The disclosure was found to have violated the Personal Health Information Protection Act (PHIPA)(Ontario); the  Occupational Health and Safety Act (OHSA) (Ontario); and the employer’s own policy on Confidentiality of Employee Health Information.

Arbitrator Abramsky commented that his decision should not be taken to suggest that an employer is not entitled to utilize such information to prepare its defence to an employee’s grievance:

The determination of this decision is not to suggest that an employer, when facing a grievance concerning accommodation, where the information contained in the occupational health file is arguably relevant, is not entitled to that information in order to advise its client and prepare its defence. It is entitled to it, and there  are many arbitral cases which have ordered the production of the grievor’s occupational health file. That is the irony of this case. The grievor’s occupational health file (or at least the relevant portions of it) would have been provided to employer counsel either with the grievor’s consent or by arbitral order. What the Hospital was precluded from doing, however, was to disclose the file to counsel without the grievor’s consent or an arbitral order.

The matter of remedy was referred back to the parties.

Matters related to employee privacy are considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.