llness and Absenteeism.com - Summer 2019 Newsletter
In this edition, you will find:
A. Featured Discussion: Two very similar cases arising from British Columbia illustrate that an entitlement to negotiated child care leave may depend on whether the employee’s need to care for the child fell within the employee’s hours of work. [Click here]
B. Recent Decisions of General Interest
1. Discriminatory conditions that were imposed on a disabled employee were upheld on the basis that the conditions constituted a bona fide occupational requirement. Moreover, the employer had accommodated the employee to the point of undue hardship. In addition, the employee was found to have failed to facilitate the accommodation process, while the union was found to have been a party to the discrimination because it had impeded the employer’s reasonable efforts to accommodate. [Click here]
2. A suspension that had been imposed because of an employee’s unauthorized absence from work for a purported medical condition was upheld on the basis that her evidence failed to establish that she had been unable to work for medical reasons. [Click here]
3. An employer acted reasonably when it determined that it could no longer accommodate a disabled employee in a “nights only” position. [Click here]
5. A senior applicant who had been denied a job posting on the basis of his attendance record was unsuccessful in his grievance even though most of his absences had been related to “union business.” [Click here]
A. Featured Discussion: Two very similar cases arising from British Columbia illustrate that an entitlement to negotiated child care leave may depend on whether the employee’s need to care for the child fell within the employee’s hours of work.
In Vancouver Coastal Health Authority (Vancouver General Hospital), 2017 CanLII 79460 (BC LA) (Bell), the employee was denied one day of “special leave” to care for her 10 year old daughter. The entitlement clause in the collective agreement provided:
Special leave shall be granted … to provide care to an immediate family member who has a serious illness up to fifteen (15) working days at one time.
The employee’s daughter was suffering from a flu-like illness that commenced on the afternoon of December 10. The next morning, the employee advised the employer that she would be absent on that day (December 11). Her testimony at the hearing was to the effect that her daughter had last vomited at 5:30 that morning, and that she had remained home with her daughter for the balance of the day to monitor her and to encourage her to consume fluids. The employee further testified that she could not go to work that day because she had been up for 24 hours caring for her child.
In denying the grievance, the arbitrator stated that she accepted that the employee had spent the night caring for her child and that she would have been exhausted from doing so. The employee’s decision not to report for work when exhausted was understandable. These facts did not however engage the collective agreement requirement that the availability of the leave was limited to instances where the employee was caring for a family member who was suffering from a serious illness. The arbitrator stated that “monitoring a ten year old child and encouraging fluids after a night of vomiting and diarrhoea is evidence of a caring parent rather than evidence of providing care for a serious illness.”
A similar clause was considered in Providence Health Care (St. Paul's Hospital), 2017 CanLII 79363 (BC LA) (Ready). There, the collective agreement provided that special leave of up to two days at one time would be granted “to provide care to an immediate family member who has a serious illness …”
In the Providence Health case, the employee’s husband telephoned her at work to advise that their eldest daughter was sick. At his request, the employee came home to care for their daughter so that he could go to work. The child was at that time experiencing flu-like symptoms, including a fever, malaise, aches, pains, nausea, vomiting and diarrhoea.
Arbitrator Ready distinguished the facts in this case from those in the afore-referenced Vancouver Coastal Health Authority (Vancouver General Hospital) case, stating that in the Vancouver Coastal case, there were no objective indicators of a serious illness occurring “in the hours that the [employee] was scheduled to work,” and therefore the employee’s child was not then suffering from a serious illness that would engage the collective agreement provision. Arbitrator Ready relied on the decision of arbitrator Munroe in Sunnyhill Hospital (1994), B.C.C.A.A.A. for guidance as to what would constitute a serious illness:
I agree with the analysis of arbitrator Munroe in Sunnyhill … There ought to be a consideration of two questions. The first question posed by arbitrator Munroe was: Did the employee genuinely believe that the illness was sufficiently serious as to require the presence of a caregiver? … The second question posed by arbitrator Munroe was: If so, was that honest belief reasonable in the circumstances being confronted?
Arbitrator Ready stated that here, the child exhibited objective indicators at the relevant time (fever, vomiting and diarrhoea) that were more than just a cold. The circumstances met the requirement of a “serious illness.”
The employer had also argued that there was a general requirement for all employees to make childcare arrangements to care for an ill child. Arbitrator Ready stated that he accepted that there was such a general requirement, but he concluded that it would not exist where the obligation had been included in (but bargained out of an earlier collective agreement) nor would such a general requirement supersede the earned special leave benefit in the absence of such a requirement.
The grievance was granted. Cases involving child care and family leave issues are considered in chapter 7C (Principles Governing Entitlement to Leaves of Absence).
B. Recent Decisions of General Interest
1. Discriminatory conditions that were imposed on a disabled employee were upheld on the basis that the conditions constituted a bona fide occupational requirement. Moreover, the employer had accommodated the employee to the point of undue hardship. In addition, the employee was found to have failed to facilitate the accommodation process, while the union was found to have been a party to the discrimination because it had impeded the employer’s reasonable efforts to accommodate.
In Canadian Pacific Railway, 2017 CHRT 24 (CanLII) (Johnston), the adjudicator accepted that while the employee had established a prima facie case of discrimination based on his disability, the restrictions the employer had imposed on his employment were based on a bona fide occupational requirement, and further, that the employee had been fully accommodated at all relevant times to the point of undue hardship. The claim of discrimination on the ground of disability was therefore dismissed.
The employee had also alleged that the employer’s scheduling/travel requirements failed to accommodate his family needs in terms of caring for his ailing parents. That allegation was dismissed because the employee had failed to adduce evidence to establish “that he had an eldercare obligation that engaged his legal responsibility.”
The employee had been employed as a locomotive engineer. His job involved “driving trains” from his home terminal in Lethbridge to and back from other terminals in Southern Alberta. He began his employment in 1986. By 2010, he was facing increased difficulties with sleeping and increased anxiety while waiting to be called out for a shift. As a result, he was forced to report medically unfit for work 59 times in 2010 and 30 times in the first half of 2011. He also reported to his physician that he had fallen asleep on two or three occasions while driving a train.
By that point, the employee had chosen to work on a “call-out” basis out of the Lethbridge terminal.
It was accepted that the locomotive engineer position was safety critical. “In a safety critical position, impaired performance due to a medical condition could result in a significant incident affecting the health and safety of employees, the public, property or the environment.”
The employee had consulted an expert physician who was both Board Certified in Sleep Medicine and a sleep medicine consultant. The expert diagnosed the employee as possibly suffering from Circadian Sleep Rhythm Disorder. At the employee’s request, the specialist recommended that the employee’s “call out window” be restricted to the period between 5 a.m. to 5 p.m. The employee had sought that restriction “because it had worked for him when he was based in Calgary a number of years prior.” The evidence was that the employee did not discuss with the specialist his general working conditions or available options and that the specialist did not know that the recommended 5 a.m. to 5 p.m. window could still have required the employee to drive a train overnight. She made her recommendation because the employee requested it.
The adjudicator found that creating the requested “call out window” would have caused considerable expense to the employer and would have posed a health and safety risk to other employees.
The adjudicator concluded that the employee’s participation in the accommodation process was somewhat inadequate. He had failed to update his bid card to ensure that he obtained five shifts per week and further:
[He] provided the Sleep Specialist with inadequate information to determine appropriate medical restrictions. By designing his own preferred accommodation and seeking it directly, he made the process of arriving at a suitable accommodation more lengthy.
The employer acknowledged in argument that the employee had established a prima facie case of discrimination based on disability.
The Union was found to be a party to the discrimination in that it impeded the employer’s reasonable efforts to accommodate. It did so “when it refused, during its participation in the accommodation process, to properly consider an option that impacted the seniority of another employee, based on its improper consideration of the nature of the employee’s disability. [The Union’s] actions were guided by a biased view that the [employee’s] sleep disorder did not constitute a disability deserving of accommodation to the point of displacing a more senior employee.” The adjudicator stated that the employee would be entitled to relief against both the employer and the union unless they were “each able to justify their impugned conduct as a BFOR.”
The adjudicator concluded that for the employee to have worked as a locomotive engineer on the basis that he had advocated would have required him to “maintain a level of alertness and cognitive functioning inconsistent with his diagnosis of Circadian Rhythm Sleep Disorder … The employer’s decision to prohibit the [employee] from working as a [locomotive engineer] in unassigned service without restrictions was made for a purpose rationally connected to the performance of his Safety Critical position as [a locomotive engineer], and further that it was made in an honest and good faith belief that it was necessary to maintain safety, and was consistent with the diagnosed medical restrictions.” The employer’s duty to accommodate had been satisfied by its earlier offer to transfer the employee to a suitable position in Calgary:
While the Employer and the Union continued to participate in an accommodation process to find the [employee] a more desirable accommodation, their legal obligation to accommodate was satisfied by the offer of relocation.
The adjudicator commented that while the employer’s offer of accommodation provided a full answer to the employee’s claim of discrimination, the employee’s own failure to facilitate the accommodation process was also a full bar to any claim against the employer and the union:
The [employee’s] failure to facilitate the accommodation process was three-fold: First, the [employee] was hesitant to provide complete information to his Sleep Specialist. Rather than providing her from the outset with a complete understanding of his workplace, and the options available, he merely provided her with only enough information at each stage of the process to ensure he obtained his most preferred accommodation at that time. It is clear that the efficacy of the Sleep Specialist’s recommendations was undermined by the [employee’s] failure to advise her fully of the nature of his work.
The [employee] also failed in his obligations to provide ongoing and updated medical records to [the employer] to allow for a more effective effort to return him to work. He tended only to update his medical information after he was presented with employment options that were inconsistent with his medical restrictions. This practice left the [parties] and the Employer in particular, constantly one step behind in the accommodation process, and resulted in much wasted effort in trying to design a modified foreman position for the [employee].
Finally, the [employee] failed to update his bid-card appropriately, which prevented him from working as many shifts in assigned service as possible. Instead, he continued to argue for his preferred accommodation options.
The complaint was dismissed against both the employer and the union.
An employer’s obligation to accommodate along with the employee’s duty to facilitate such an accommodation, are considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
2. A suspension that had been imposed because of an employee’s unauthorized absence from work for a purported medical condition was upheld on the basis that her evidence failed to establish that she had been unable to work for medical reasons.
In Fraser Health Authority (Mission Home Health), 2017 CanLII 72396 (BC LA) (Ready), the employee was suspended for three days for having claimed three days of unauthorized leave that was not supported by medical evidence. The claim for sick leave was made in the context of the employee having overstayed her vacation in her birth country.
The collective agreement provided that:
Sick leave with pay is only payable because of sickness or injury and employees who are absent from duty because of sickness may be required by the Employer to prove sickness. Failure to meet this requirement can be cause for disciplinary action. Repeated failure to meet this requirement can lead to dismissal. A doctor’s certificate may be requested for each leave of more than three (3) consecutive days …
Employees must notify the employer prior to the commencement of their shift of any anticipated absence from duty because of sickness and employees must notify the Employer prior to their return to work.
The evidence established that the employee’s travel arrangements provided for her to return to Canada five days after her last day of authorized vacation. Two of the claimed sick leave days coincided with the first two days that she was to return to work while the third fell on the first day following her actual return to Canada. The employee claimed to have injured her foot two days prior to the end of her scheduled vacation, and she attended at an emergency department in her home country five days later (i.e. on the day following her scheduled return to work). She provided a medical note confirming that she had been examined and treated. The diagnosis was arthritis.
Two weeks after her return, the employee provided additional medical information. The first was from a clinic that diagnosed her with planter fasciitis, while the second was from a sports physiotherapy clinic that diagnosed her as suffering sports sprains and strains related to an ankle and foot. Upon her return to work, the employee had not reported any restrictions or limitations on her ability to perform her regular duties. The arbitrator found that the employee’s evidence did not hold up to scrutiny. He accepted that while she may have had a foot injury during the material time, none of the medical information established that she was unable to work due to her foot or ankle.
In dismissing the grievance, the arbitrator stated:
It is well settled that dishonest conduct at the workplace is serious in nature as it has the effect of eroding the employer/employee relationship. Honesty is the touchstone of that relationship. That principle applies to sick leave claims. The [reason] is simple: employers and unions negotiate these benefits to provide monetary and medical relief when illness or injury strikes an employee. These benefits are there when the legitimate need arises to use them – they are not to be abused or claimed to cover other expenses …
The issues of fraudulent or unjustified absences are considered in sections 2:400 and 17:200 of the Illness and Absenteeism manual and its supplement.
In Fraser Health Authority, 2017 CanLII 79201 (BC LA) (Bell), the employee, who was employed in a part-time night position, sought accommodation that would involve her placement in a day position.
After having accommodated the employee in her part-time position by scheduling her on other than nights, the employer advised that it could no longer do so. It provided the union with data to support its position that continuing to accommodate the employee’s “no nights” restriction in her part time position would be difficult in light of increased sick leave calls, workload issues and short staffing.
After having canvassed 26 positions, only one of which was determined to meet the employee’s restrictions, the employer placed her in a full time days only Public Health position.
The arbitrator stated that the “no nights restriction” that had governed the employee’s part time position had resulted in a temporary accommodation in that position. The expected timeframe in which the limitation would cease had not been defined. He stated:
I accept that the Employer considered whether it could continue the accommodation indefinitely with that restriction and because of the size of the unit and the fact that there was already an individual working in the unit as a part time nurse with an existing “no night” restriction accommodation, it determined that it could not. The union did not present evidence … that this conclusion was not reasonable.
The union argued that there were two part time positions in the list of 26 positions that should have been considered. The arbitrator stated that more than an assertion was required; the union should have, at a minimum, tendered the two job descriptions along with information respecting the positions in order to enable them to be assessed against the employee’s medical restrictions. The union also contended that earlier medical notes had recommended part time work. The arbitrator stated that while those notes had said that part time work was preferable, she was unable to conclude, on the evidence, that it was medically required. Finally, the union had not brought forward any evidence to establish that the first six months of accommodation in the newly assigned full time position had not been successful.
The arbitrator acknowledged that while the accommodation was not perfect, and that while the employee would have preferred different hours of work, the accommodation was reasonable based on the evidence that had been heard.
The grievance was dismissed.
Factors involved in assessing the reasonableness of an offer of accommodation are considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
In Tolko Industries Ltd., 2017 CanLII 79297 (BC LA) (Bell), the employee’s employment was terminated after the employee backed up a 30,000 pound log loader without looking behind him, with the result being that he backed into a chip loader being driven by another employee. The environment was properly described as one that was safety sensitive.
The union did not call any evidence, so that the arbitrator’s decision was based on the evidence as presented by the employer and evidence elicited by the union in its cross examination of the employer’s witnesses.
The employee and the other driver were sent for drug testing. The employee tested positive for marijuana metabolite, while the other driver tested negative for all prohibited substances.
The union challenged the drug test as having been unreasonable and contrary to both the employer’s policy and the principles set forth in the KVP case. It asserted that the grieving employee should not have been tested because others had not been tested in similar circumstances. The arbitrator commented that the individual analysis that was undertaken in this case was to be distinguished from “arbitrary or discriminatory application or enforcement.” Such was not evident from the facts before the arbitrator. The KVP argument was unsuccessful.
In arriving at her decision on this point, arbitrator Bell referenced the decision of arbitrator Lanyon in Elk Valley Coal Corp.,  B.C.C.A.A.A. No. 210 (Lanyon), where arbitrator Lanyon had stated:
… it is clear that an employer is to be given … “substantial latitude” to investigate a safety event. Drug and alcohol testing is a legitimate investigative tool where the circumstances point to the potential of human error as one factor contributing to the cause of an accident. The reason for this is that the safety of all employees and the integrity of the company’s operation are amongst two of the most significant workplace policies.
In concluding that the employer’s decision to require testing was reasonable, the arbitrator relied on the decision of arbitrator Glass in Elk Valley Cal Corp. – Fording River Operations,  B.C.C.A.A.A. No. 299 (Glass), where arbitrator Glass had summarized the prevailing jurisprudence as follows:
Several points can be distilled from the above review of the authorities in this area which apply to a policy of this kind:
(1) A drug test is justified if it is a reasonable line of enquiry into the cause or causes of a significant event;
(2) An employee is probably only entitled to refuse a test if it [is] manifest that it is unreasonable to require a test in the circumstances;
(3) An incident does not have to involve major damage or actual personal injury for a valid safety concern to be raised, which may justify a test;
(4) Employers are to be given substantial latitude to investigate a significant event.
Arbitrator Bell then stated:
[The employer] is not required to demonstrate that an employee consumed drugs or is impaired by drugs before demanding a test. Testing must be based on an assessment of the situation as it is known at the time. It must also be noted that the purpose of the investigation is to protect the safety of employees in the workplace, including the Grievor. It is not intended to be a means to gather incriminating information but rather a means to assist in investigating an incident by ascertaining whether drugs or alcohol were present in an employee at the relevant time. Drug testing would be less helpful in an investigatory sense if the results were a foregone conclusion. The case for it would potentially be less persuasive because testing would start to resemble evidence-gathering rather than a true investigation tool. [The employer] was not only testing [the grieving employee]; it tested both operators involved in the collision. In fact the test results of [the other employee] were negative for drugs and/or alcohol, meaning that cause could be eliminated. Therefore, I cannot conclude, based on the facts in evidence before me, and in particular, the fact that both employees were tested after the collision, that the [grieving employee] was tested because of his prior history, as alleged by the union.
The arbitrator further stated:
The Employer is not required to show that the [employee’s] actions were the only cause of the accident in this safety sensitive environment. Rather, the Employer must demonstrate that the [employee’s] actions contributed to the damage to the log loader and that testing was reasonable in the circumstances.
While it was not disputed that the employee had tested positive for a controlled substance, no scientific evidence had been lead as to the meaning of the result. Nevertheless, it was a violation of the employer’s Policy for an employee to test positive for a controlled substance. However, without further evidence, the arbitrator was unable to conclude that the employee “reported for work under the influence of a controlled substance or had his ability to work in any way compromised by a controlled substance …”
The employee was considered to be a long-term employee with a clean disciplinary record. In arriving at that assessment, the arbitrator refused to consider earlier discipline that had been subject to a “sunset clause”. She stated:
Turning to the sunset clause issue, I am persuaded by the Union that the previous incident should not be considered when assessing the level of discipline to be imposed. This prior discipline is not admissible after the sunset period for purposes other than to demonstrate that the [employee] was on notice. It is not helpful in that regard in the current matter because this is not a situation where the [employee] has testified and denied knowledge of the Policy or the fact that breach of the Policy can result in discipline up to and including termination of his employment.
The arbitrator considered the termination to be an excessive disciplinary response. She noted that during the employer’s discussions prior to the termination, the employer’s Human Resources Manager had recommended a five day suspension based on the type of penalty that had earlier been imposed for similar breaches at the employer’s workplace. The arbitrator reinstated the employee with a five day suspension, coupled with a direction that the employee be prohibited from operating mobile equipment for two years from the date of the award.
5. A senior applicant who had been denied a job posting on the basis of his attendance record was unsuccessful in grieving the denial even though most of his absences had been related to “union business.”
In School District #36, 2017 CanLII 61766 (BC LA) (Bell), the employee was a head caretaker. He applied for and was denied the position of Trades Helper on a filter crew. He was the senior applicant and had been employed since 1989. He was denied the position solely on the basis of his attendance record.
If the employee had been the successful applicant, he would have worked as part of a two person filter crew. The accepted evidence was that of the 2500 pieces of equipment requiring filter changes, 1125 required a two person crew for safety and practical reasons. It was the employer’s evidence that the work could not be done safely if there was a lack of reasonable attendance by one of the two person crew. The Union’s position was that while a two person crew was at all times necessary to complete the work, it was not necessary for the two crew members to be the same individuals at all times.
The employee’s union involvement was the cause for most of his absenteeism. In the nine months preceding the interview, the employee had been scheduled to work 140 days. He had taken 43 days off, of which 35 days were for union business. This represented an attendance level of just under 70%.
During the employee’s interview, the employee was advised that this level of absenteeism would preclude the employer from offering him the position of Trades Helper. On the issue of whether the employee had offered to limit his time off, the arbitrator summarized the evidence as follows:
[The employee], at the interview, confirmed his intention to continue with his union activities and commitments. He liked his position as Second Vice President, and he was running for further office in the election of April, 2017. Even though he was told that if his union absenteeism continued he would not be awarded the position he failed to indicate that he was willing to curtail his union activities and leaves. It was therefore reasonable for the employer to conclude that the level of absenteeism experienced in the nine months leading up to the [employee’s] application for the position, would continue for a substantial length of time after he was awarded the position.
Arbitrator Glass considered two decisions between these same parties, stating that they confirmed that it was legitimate to treat a reasonable level of attendance as a qualification depending on the nature of the position.
In Board of School Trustees of School District No. 36 (Surrey), unreported, (August 26, 2016) (Sullivan), the facts were somewhat similar, in that the employee was denied a charge hand position on the basis that he required two days off per week to attend to union business. The employer led evidence establishing that regular attendance was critical to the afternoon shift of the charge hand position. Arbitrator Sullivan stated:
It has been recognized at law that depending on the nature of the position/designation at issue, meeting certain reasonable attendance requirements may be a critical qualification. On the evidence, the charge hand position in question has a legitimate requirement for a good attendance record and the [employee’s] absences effectively bar him from performing the work to the reasonably acceptable standards …
As a general proposition an employee’s attendance at work can be a relevant factor for consideration depending on the nature of the position in question. The evidencc in the present case discloses the charge hand position warrants a level of continuity in attendance that the [employee] is at least at present unable to provide.
In a much earlier decision between the parties [Board of School Trustees of School District No. 36 (Surrey), unreported, (October 23, 1992) (Kinzie)], the applicant employee had been absent for a series of health related reasons for 50% and 60% of the time in the two prior years. Arbitrator Kinzie upheld the employer’s decision not to award the position to the grieving employee and in doing so, stated:
Finally I am satisfied that the employer’s conclusion that the pattern regarding [the employee’s] inability to attend work regularly would continue in the future despite his statement to the contrary, was a reasonable one given his record over the previous four years … In my view that objective evidence was more compelling than the [employee’s] subjective statement that his health had improved.
In arriving at his decision in this case, arbitrator Glass rejected the union’s argument that the employer could and should be required to make consensual arrangements with the union to accommodate the employee and allow him to fill the position:
Aside from posing operational difficulties, the employer is not obliged under the collective agreement to create and train a pool of employees just to be ready, often at a moment’s notice, to relieve one individual in one position, and [never mind that it would breach the collective agreement], it is unreasonable to expect the employer to agree to do so.
The arbitrator further stated:
I find that it cannot be a breach of the collective agreement on the part of the employer, to fail to conclude an agreement with the union which varies the collective agreement.
Arbitrator Glass distinguished the facts from those in Canadian General Electric Co. (1980), 27 L.A.C. (2d) 18, where the employee was successful in arguing that “By denying [him] the upgraded position solely on the basis of [his] leaves of absence for union activities which had been granted by the company at its’ own discretion, the company misapplied the provisions … of the collective agreement.” The distinction was that in the Canadian General Electric case, leaves of absence for union activities were granted at the discretion of the employer, whereas in this case, such leaves were mandated by the language of the collective agreement. That meant that if the employer here, “fails to grant leave in any given case, [it] is exposed to a grievance based not just on bad faith or arbitrary conduct but on the very broad grounds of just cause. This is a much more restricted power to refuse a leave of absence than was described in Canadian General Electric …”
The union had referred to two other cases which also emphasized the point that where the employer had previously authorized absences, it could not now complain about those absences as a basis for denying a posted job. Arbitrator Glass commented that the same distinguishing factor was present in both Federal Bolt and Nut Corporation (1978), 17 L.A.C. 292 and in Massey Harris Ferguson (1958), 9 L.A.C. 167.
Arbitrator Glass also commented that the law supports the proposition that “arbitrators are generally reluctant to interfere with the decision of management unless convincing evidence is led of arbitrariness, discrimination, bias and/or bad faith or that management’s judgement was unreasonable.” [see for example Avis Car Inc., 2015 B.C.C.A.A.A. No. 23 (Keras)]. None of those considerations were present in this case.
In his concluding comments, arbitrator Glass noted that the employee would in future be eligible as a senior applicant to be considered for a future posting for this position if he significantly reduced his absenteeism, and that he would be eligible, without curtailing his current union activities, to fill any position in which reasonable attendance was not essential.
The impact of innocent absenteeism on promotions and entitlement to increased hours of work is addressed in section 17:300 of the Illness and Absenteeism manual and its supplement.