llness and Absenteeism.com - June 2013 Newsletter

In this edition you will find...


Featured Article: American Psychiatric Association Publishes Its Revised Manual of Psychiatric Disorders

On May 18, 2013, the American Psychiatric Association published the long-awaited fifth edition of its diagnostic manual of mental disorders.

The DSM 5 (the Diagnostic and Statistical Manual of Mental Disorders) replaces the DSM IV which was published in 1994. The DSM 5, as with its earlier versions, is primarily a descriptive manual that classifies upwards of 300 psychiatric illnesses based on the presence of clusters of symptoms. It has proven important in the arbitral field, in that advocates have frequently used the “manual criteria” to prepare and/or examine or cross-examine specialists called upon to testify regarding a diagnosed psychiatric disorder.

From an arbitral perspective, the most frequent disorders are those dealing with addictions, post-traumatic stress disorder, and psychiatric illnesses that impact on the employee’s ability to meet her employment obligations. Minor changes have been made to the PTSD criteria, and the former categories of substance abuse and substance dependence have now been combined into single substance use disorders specific to the particular substance being abused.

The earlier version (the DSM IV) incorporated a classification system setting forth 10 different personality disorders. The classifications remain unchanged in the DSM 5.

The revised manual has been subject to significant criticism for failing to consider the growing field of knowledge regarding the biology of mental disorders. Despite these criticisms, there is a general recognition that the DSM 5 represents the best available classification system, and there is little doubt that it will prevail for the immediately foreseeable future. That being said, it is merely one form of classification that embodies an incomplete understanding of the disorders that it purports to describe. Specialists that blindly accept its approach may not fare well under intensive examination.  


Recent Decisions of General Interest

1. In Canada Post Corporation, 2012 CanLII 52747 (MB LA) (Peltz), the arbitrator commented on assessing the credibility of witnesses, the applicable standard of proof in civil proceedings, and the proper test for proof in cases involving circumstantial evidence.

In the case of circumstantial evidence, arbitrator Peltz cited a 2003 decision of arbitrator Joliffe that had adopted an earlier decision of arbitrator Marcotte:

In proving “just cause” for disciplinary action …, the circumstantial evidence must lead to two inferences or conclusions:

  1.  Does the circumstantial evidence point to the charged employee as having committed the offence or misconduct?
  2.  Does the circumstantial evidence exclude any other employee from having committed the offence or misconduct?

Arbitrator Peltz commented that while the evidentiary record did “not permit the puzzle to be solved with certainty,” the test for proof based on circumstantial evidence had been met. Applying reason and common sense to the known facts, there is no probable scenario other than guilt on the grievor’s part.”

Issues regarding evidentiary matters are reviewed in the Illness and Absenteeism manual at s. 6:200 (page 62) (standard of proof) and s. 13:500 (page 507) (assessing credibility). Cases regarding circumstantial evidence can be found in s. 13:500 of the Manual Supplement.

2. In London Health Sciences Centre, 2013 CanLII 143 (ON LA) (Hayes), a nurse, was terminated for theft of drugs (including narcotics) and for having falsified documents. The arbitrator found that the employer had discriminated against the nurse, and he ordered the parties to meet to consider whether she could be accommodated, short of undue hardship to the employer, having regard to the restrictions imposed by the College of Nurses.

When the hearings were held in October of 2012, the nurse testified that she had been drug free for a period of approximately 18 months. The arbitrator found that her statement was “supported by urine test results from [that time] to date. The tests have been witnessed almost invariably and continue to date. She is tested twice a week. Confirming documentation, concerning periods of time contemporaneous with the arbitration hearings, was filed post-hearing … when it became available.”

The nurse’s conduct had been referred to the College of Nurses of Ontario, and it was ultimately agreed that the nurse would be restricted from practicing until the College could be satisfied that she could practice safely subject to appropriate terms, conditions and limitations to be imposed on her practicing certificate.

The arbitrator commented that but for the nurse’s addiction, he would have sustained the discharge that was imposed. However, he was of the view that the nurse’s addiction was “the direct cause of her misconduct.” He stated that there was nothing the nurse might have done other than that which she did to facilitate her recovery. “While recovery from addictions is a lifelong challenge, to date [the employee] may be seen as a remarkable success story where many others have failed.”

The parties were ordered to meet to ascertain if the nurse could be accommodated short of undue hardship.

Issues regarding the approach to be taken in a case involving both misconduct and addiction are considered further in s. 15:303 of the Illness and Absenteeism manual.


Recent Cases Considering the Enforceability of Deemed Termination Provisions

A series of cases have recently considered the enforceability of collective agreement provisions that deem an employee’s employment to be terminated where the employee has been absent without properly notifying the employer.

While deemed termination provisions are generally upheld, that will not be the case where the employee establishes that her absence was causally related to a disability, unless the employer can satisfy the arbitrator that it had accommodated the employee’s disability to the point of undue hardship. An employee may also be relieved from a breach of a deemed termination clause where the non-compliance was totally outside her control or where she was entitled to emergency leave in accordance with a legislative provision.

(i) In Sobeys Milton Retail Support Centre, 2012 CanLII 57020 (ON LA) (Surdykowski), the employee was advised that he must either return to work or provide medical evidence to justify his continuing absence. When the employee failed to do either, he was terminated pursuant to a clause that mandated a termination for having been absent “without authorization for a period of three … scheduled work days without a valid reason.”

Arbitrator Surdykowski concluded that the grievor’s unsubstantiated assertion that he was not able to work during his absence did not constitute a valid reason for his absence.” The arbitrator found that he did not have authority to alleviate the specified penalty, for the employee’s employment had been terminated by application or operation of the collective agreement and not for cause. 

(ii) In Lake Erie Works, 2013 CanLII 7257 (ON LA) (Kaplan), the arbitrator upheld the termination of an employee who was absent for more than three consecutive days without having advised the employer. The arbitrator held that he had no authority to provide relief from the terms of a collective agreement that dictated such a result.

In coming to that conclusion, the arbitrator stated:

There are numerous authorities interpreting [similar articles]. They are all in agreement that arbitral review is limited to determining whether an employee met his or her obligations to notify the employer of his or her absences and to provide justification for those absences. If the conclusion is reached that the employee did not provide notification and justification, and if the evidence establishes that more than three consecutive working days were missed, the termination must stand. There is no basis for the consideration of any mitigating circumstances. Even if there was, as the grievor did not testify – the union called no evidence – and no mitigating circumstances were advanced, that is not a consideration in the disposition of this case.

(iii) The termination of an employee pursuant to a deemed termination clause was also upheld in Sifto Canada Corp., 2012 CanLII 28985 (ON LA) (Harris). There, the clause provided that an employee would be terminated “if absent for more than three consecutive working days “without just cause in the opinion of the Company, except in case of sickness confirmed by a doctor’s certificate, provided the Company is notified of such sickness during the above three (3) working day period.” The employee testified that his absence was due to a mistaken belief that he was scheduled to be on vacation during the relevant period.

In dismissing the grievance, the arbitrator stated:

The issue is whether the absence was “without just cause” as set out in [the clause]. The opinion of the Company …should be given considerable deference. If the Company’s opinion is reasonable then the discharge stands. I have no jurisdiction to substitute my opinion.

(iv) In Aviscar Inc., 2012 CanLII 22238 (ON LA) (Chauvin), the employee had been terminated pursuant to a collective agreement provision addressing absence “from work for 3 consecutive work days without notifying management.” A companion clause provided that seniority would be broken in such circumstances. The employee’s disability benefits had ceased, and during the two months that followed, the employee refused to return the employer’s telephone calls and failed to respond to its letter advising that unless he returned by a specified date, he would be considered to have abandoned his position and would be terminated. The termination was upheld.

In arriving at his conclusion, arbitrator Chauvin appeared to consider that he had jurisdiction to substitute a lesser penalty for the termination; but he refused to do so, concluding that the employee’s termination was not “a disproportionate or excessive response” to his misconduct.

(v) In Cargill Meats Canada, 2012 CanLII 40281 (ON LA) (Surdykowski), the employee, who had been medically cleared to return to work, remained in Lebanon where he had reportedly travelled to visit his ill father. He did not seek a leave of absence or advise the employer of his whereabouts. His termination was upheld.

The employer initially relied on two clauses in the collective agreement; with those being Article 16.09 (b) (fails to return to work within seven (7) calendar days after being notified to do so unless a satisfactory reason exists for not returning) and Article 16.09 (c) (fails to report to work at the expiry of a leave of absence unless a satisfactory reason exists for not reporting to work).

 The employer testified that it did not initially rely on Article 16.09 (e) (absence of three or more scheduled working days, without advising the employer and without providing a satisfactory reason) in deference to the employee’s 20 years of employment and the fact that he had been on medical leave.

Arbitrator Surdykowski commented on the difference that exists between a deemed termination by operation of the collective agreement and a termination for cause:

Notwithstanding the effect on the employee and the often disciplinary flavour to a deemed termination, it is considered to be a non-disciplinary matter for onus and procedural purposes. In a deemed termination case the onus is therefore on the union and it must proceed first.. In contrast, the onus in a just cause case is on the employer and except in rare circumstances it typically proceeds first.

The arbitrator held that the employer could not rely on Article 16.09 (e) given its earlier failure to do so. However, he found that the termination was justified on the basis of Article 16.09 (c), or in the alternative, Article 16.09 (b). He stated that “whether or not the grievor’s failure to comply with his collective agreement obligations had any operational impact on the Company [was] irrelevant to the application of Article 16.09 strictly construed.”

In concluding that the grievor’s testimony was neither credible nor reliable, arbitrator Surdykowski relied on the approach taken in R. v. Morrissey, 1995 CanLII 3498 (ON CA), Landry v. Pratt & Whitney Canada, 1996 CanLII 10409 (AB QB), Versa Care [2005] O.L.A.A. No. 66 (Knopf) and Faryna v. Chorney [1952] 2 D.L.R. 354 (B.C.C.A.).

(vi) In Sunnybrook Health Sciences Centre, 2012 CanLII 35598 (ON LA) (Jesin), the arbitrator refused to uphold a deemed termination pursuant to a provision that an employee would be deemed terminated if absent from work for a period of three or more consecutive working days without notifying the employer and providing a satisfactory reason to the employer.

In granting the grievance, arbitrator Jesin concluded that the employee had notified the employer, as required by the agreement, in that she had been in contact with its Occupational Health personnel. The arbitrator also commented that the employee was suffering from obsessive compulsive disorder and mild to moderate depression, and that a termination in the circumstances would be unreasonable, arbitrary and inconsistent with the Human Rights Code’s prohibition against discrimination on the basis of disability. Finally, the arbitrator commented that the real issue was the validity of the assessment and prescription of the employee’s physician, and that it was not appropriate to employ a deemed termination clause in such circumstances:

That is not to say that the Employer cannot challenge the assessment and prescription of [the employee’s doctor]. The Employer might have sought more detailed information from the doctor as to why the grievor could not work at her regular job. Or it might have sought an independent medical review of the information provided, but it was arbitrary to have challenged that assessment by unforgivingly purporting to apply the deemed termination provision to what was essentially a dispute between the grievor and the Employer about the grievor’s capacity to work at her regular job. In my view, [a deemed termination provision] is not appropriate for resolving such disputes particularly where the employer has full knowledge of the reason for the employee’s absence.

In coming to that conclusion, the arbitrator relied on Active Exhaust Corporation, unreported, September 22, 2009 (Surdykowski) and CSA International, [2001] O.L.L.A. No. 536 (Kaplan). In CSA International, the employer “knew exactly where the grievor was and what position he was taking. He cannot … fairly or reasonably be described as an employee absent without leave. There is no evidence of any intention whatsoever to abandon his job – all the evidence is to the opposite effect.”  In Active Exhaust, the arbitrator found that “the Company cannot refuse to consider or reject as unsatisfactory an explanation that is objectively reasonable.”

(vii) Finally, the interaction of a deemed termination provision with the emergency leave provisions in s. 50 of the Ontario Labour Relations Act was considered in Revera Retirement LP, 2013 CanLII 9071 (ON LA).

In Revera, the arbitrator accepted that the emergency leave provisions set forth an absolute entitlement to an emergency leave in the case of an emergency as that term is defined in the legislation. The fact that the employee had failed to provide the employer with the required notice in advance of the leave did not impact on the entitlement to the leave. Rather, the failure to give notice was, in the circumstances, a minor disciplinary issue that might attract a minor disciplinary sanction. A letter of warning was substituted for the termination.

The issue of deemed termination clauses is considered in the Illness and Absenteeism manual at s. 16:300 (page 796).