llness and Absenteeism.com - June 2014 Newsletter

In this edition you will find:

A. Feature Case: An alcoholic employee who was terminated after he ultimately disclosed that he had suffered relapses was reinstated despite a treatment agreement that subjected him to termination for consumption of alcohol.The arbitrator concluded that the treatment agreement was not a last chance agreement but rather was more analogous to a letter of expectation. The terms of reinstatement provided that further consumption of alcohol may be presumptively regarded as grounds for termination. [Click here]

B. Recent Decisions of General Interest:

1. A termination for innocent absenteeism was upheld where the evidence did not establish a prognosis for regular future attendance. [Click here]

2. An arbitrator in British Columbia has affirmed that the “British Columbia” approach to the admission of surreptitious surveillance evidence is one of reasonableness rather than relevance. The decision, which held that the employer’s suspicions of abuse did not provide a reasonable basis for surveillance away from the workplace, ignored a 1993 Supreme Court of Canada decision that found that arbitrators who refuse to admit evidence that would be admissible in court (i.e. relevant evidence) violate the rules of natural justice. [Click here]

3. An employee who suffered from multiple sclerosis was denied benefits where the medical evidence failed to establish that his condition had deteriorated from a baseline established when he last returned to work some six months earlier. [Click here]

4. An employee who was terminated after having taken sick leave that encompassed a period for which vacation leave had been denied was reinstated with compensation for all lost wages and benefits. In the circumstances, medical evidence tendered on behalf of the employee was accepted without the employee having to call the medical practitioners. The work performed by the employee in his own landscape business during that period was not considered to be inconsistent with the employee’s medical restrictions. [Click here]

5. On June 13, 2014, the Supreme Court of Canada issued a decision that considered the interaction between section 7 of the Personal Information and Electronic Documents Act (Canada) (PIPEDA) and the protection against unlawful seizure as set forth in the Canadian Charter of Rights. In a case involving child pornography, the Court concluded that a warrantless internet provider request for subscriber information amounted to an unreasonable search or seizure contrary to s. 8 of the Charter. The fact that the request was purportedly made pursuant to s. 7(3)(c.1)(ii) of PIPEDA (which permits disclosure to a government institution that had requested disclosure for the purposes of law enforcement and had stated its “lawful authority” for the request) was of no import because the request offended the Charter. Nevertheless, the evidence was held to be admissible pursuant to s. 24(2) of the Charter on the basis that its exclusion, on the facts of this case, would bring the administration of justice into disrepute: R. v. Spencer, 2014 SCC 43 (CanLII). This decision is considered in the cumulative monthly supplement that is available to subscribers of the Illness and Absenteeism manual.

A. Feature Case: An alcoholic employee who was terminated after he ultimately disclosed that he had suffered relapses was reinstated despite a treatment agreement that subjected him to termination for consumption of alcohol.The arbitrator concluded that the treatment agreement was not a last chance agreement but rather was more analogous to a letter of expectation. The terms of reinstatement provided that further consumption of alcohol may be presumptively regarded as grounds for termination.

In Shaw Cablesystems GP, 2014 CanLII 16663 (BC LA) (Fleming), an alcoholic employee was terminated after he acknowledged that he had suffered relapses that violated a treatment agreem ent obligating him to abstain from consuming alcohol. That agreement provided that a failure to adhere to the terms of the agreement would result in his termination for cause.

The treatment agreement had been imposed after the employee had lost his driver’s license while driving impaired on a non-work day. He immediately advised the employer and several accommodations, including the treatment agreement, were extended to permit the employee to continue to work.

The arbitrator accepted that the employee never drank alcohol at work, never went to work under the influence and never drove at work under the influence. Evidence regarding the employee’s “relapses” came from admissions that the employee ultimately made to the employer. Prior to those admissions, the employee had denied drinking when he had in fact done so on more than one occasion. The employee was considered to be a “valued employee with a discipline free work history who was recognized by the Employer as being very good at his job.” Although the employee had been absent in the previous year on 10 occasions, all but one of which were single days, the employer had not raised any concerns relating to absenteeism or work performance prior to the employee’s termination.

The employer testified that it considered alternatives to termination, such as further treatment and/or a suspension, but it decided to terminate based on its assessment that the employee’s failure to adhere to the agreement and his lack of candour about his drinking meant that dismissal was necessary.

The expert evidence led on behalf of the parties differed in one primary respect. The expert called on behalf of the employee testified that it was highly unusual for a recovering alcoholic to have no relapses and that in his practice he did not have a single patient who has not had a relapse. The employer’s expert opined that a return to work would only be appropriate where the risk of relapse was relatively low, and that in this case, a proper risk assessment could not be made.

The arbitrator concluded that the treatment agreement could not be said to amount to a last chance agreement:

A last chance agreement usually arises in the context of employee misconduct for which there is cause for dismissal. However, an employer is persuaded to give that employee a conditional reinstatement with the critical condition being that a future breach of the agreement will justify termination. It is a function of progressive discipline.

That does not reflect the circumstances arising in this case. Rather, the PTA [post-treatment agreement] is essentially the Employer’s response to its duty to accommodate the [employee’s] illness. In that regard, the PTA provides that the Employer will continue to employ and accommodate the [employee] providing he complies with the terms of the PTA, one of which is abstinence from alcohol.

… The fact that the PTA is not a last chance agreement has some important implications. For very sound labour relations reasons, last chance agreements are presumptively given effect by arbitrators unless there are extraordinary or compelling reasons not to do so. In such circumstances, particularly in the context of the duty to accommodate, a requirement that a union as the exclusive bargaining agent and liable itself to accommodate, be a party to such an agreement makes considerable labour relations sense.

In this case, the PTA is much more analogous to a letter of expectation with a clear warning that failure to comply with the expectation will have clear consequences.

… [Accordingly], we find that the PTA should not be presumptively given effect. Rather, the fundamental question to be answered is whether the Employer accommodated the [employee’s] illness up to the point of undue hardship.

In considering this latter issue, the arbitrator cited the decision of arbitrator Knopf in Uniroyal Goodrich Canada Inc. (1999) 79 L.A.C. (4th) 129 (Knopf) for the proposition that “it is generally recognized that relapses are to be expected and accommodating an alcoholic may require some allowance for such relapses … However, it is also important to bear in mind that care must be taken not to relieve the alcoholic of the responsibility for taking reasonable steps to prevent relapses …”

Arbitrator Fleming stated that

[Alcoholism] is a recurring disorder in which relapses are the norm, not the exception. Like other chronic diseases, it is unrealistic to expect no relapses. Rather, the standard for treatment of a recovering alcoholic involves the management of relapses as opposed to a cure.

In the result, the arbitrator reinstated the employee with conditions “through which accommodation of the [employee’s] illness can be achieved.” The arbitrator stated

Accommodation does not mean that the Employer should be required to tolerate the [employee] continuing to drink. In our view, the Employer should not be required to tolerate future relapses, at least during the period of time of the [imposed] terms and conditions … In our view, that would be unreasonable and an undue burden to add to the Employer’s efforts to accommodate the [employee].

The employee was reinstated subject to the imposition of terms for a 24 month period. No compensation was awarded for lost wages. The terms included a treatment program, substance testing prior to return to work, a requirement that the employee “abstain from the use of alcohol and drugs (except for prescribed drugs required for the treatment of a medical condition),” and random unannounced testing where there were reasonable grounds to suspect that the employee is, or had recently been consuming alcohol. A refusal to undergo testing or “consuming alcohol, particularly if it results in workplace related consequences, safety issues or absenteeism may be presumptively regarded as grounds for termination.”

The issues of addiction and last chance agreements are considered in chapters 15 and 16 of the Illness and Absenteeism manual, commencing at pages 697 and 756 respectively. The issue of the likelihood of a relapse is specifically discussed in section 15:301 of the manual, while the drafting of a last chance agreement that attempts to address that possibility is considered in both sections 15:403 and 16:209 of the Illness and Absenteeism manual, commencing at pages 748 and 790 respectively.

B. Recent Decisions of General Interest

1. A termination for innocent absenteeism was upheld where the evidence did not establish a prognosis for regular future attendance.

In Loblaws Companies Limited, 2014 CanLII 9496 (BC LA) (Brown), the issue was whether the employee’s termination for innocent absenteeism could be upheld. The two questions for determination were whether her absenteeism was excessive, and whether there was a reasonable prospect for attendance in the future.

The employee had progressed through all of the steps of the employer’s Attendance Support Program, and her absences over the immediately preceding years significantly exceeded that of the plant average. In considering whether the employee’s absenteeism had been excessive, arbitrator Brown cautioned against simply using average absenteeism rates as a determinant of excessive absenteeism. In doing so, he adopted the following comments from Coast Mountain Bus Co. [2003] B.C.C. A.A.A. No. 294 (Dorsey):

Averages warrant equal scrutiny. The employer uses average absenteeism rates to cull lists of employees who might warrant attention. It uses average absenteeism rates to set attendance expectations. As has been examined in past awards, averages fluctuate from depot to depot and from time to time in a rolling calendar year. The nature of average absenteeism rates is that there are always employees whose absenteeism rate is greater than the average.

There is no rule or principle that exceeding the average absenteeism rate constitutes a record of excessive absenteeism. There is no rule or principle that exceeding the average after being counselled and warned is cogent and convincing evidence of a future inability to attend work on a regular and consistent basis.

In considering the prognosis for future attendance, arbitrator Brown noted that while surgery had eliminated a major medical concern, many underlying medical causes that were associated with the employee’s absences had not been resolved. While her physician stated that many of her remaining health issues could “be controlled in part by medication and diet, there is no history to demonstrate that [the employee] has been able to do so.”

In upholding the termination on the basis that the evidence did not establish a prognosis for regular future attendance, the arbitrator commented that no duty to accommodate issues had been placed before him.

The issue of termination for innocent absenteeism is considered in section 17:300 of the Illness and Absenteeism manual, commencing at page 840 of the manual.

In Crown Packaging Ltd., 2014 CanLII 18105 (BC LA) (Dorsey), the arbitrator held that the employer would not be permitted to adduce surveillance evidence, either by way of video or viva voce evidence, in a case involving an employee’s absence on three days for which he had been denied vacation leave. The employer had received feedback that the employee had planned to take a trip on those days.

After having reviewed the “reasonableness approach” that had emanated from British Columbia, the arbitrator found that the employer’s action in engaging in surveillance was unreasonable. He acknowledged that the employee’s “repeated requests for vacation leave for the three days generated a suspicion of abuse of sick leave when on the first of the three days [the employee] reported sick and the employer had heard that he planned to take a trip.”

In the arbitrator’s view, “a suspicion cannot be a reasonable basis for an employer to undertake clandestine surveillance away from work of an employee with whom the relationship does not heighten or give the suspicion more credence.”

The arbitrator commented that the employer should have responded differently. The employee was a long-service employee with no history of dishonesty or sick leave abuse. The report of his intended trip was based on a second-hand or hearsay approach. He stated that “reasonableness includes consideration of alternative, less intrusive means to investigate a suspicion and obtain relevant information. The employer undertook none. It made no effort to obtain further information about his sick leave claim from him or anyone else before it commenced surveillance … [It] could have asked the employee to fax, email or bring it the physician’s note … It could have contacted the physician to confirm [the employee] had visited. It could have asked [the employee] for his consent to talk to the physician. It could have asked [the employee] on that [or the following day] to see if he made improbable excuses that bolstered its suspicion that he was leaving town.”

The case analysis is open to criticism. While the arbitrator acknowledges that there is a “debate” in Ontario about whether the test for admissibility is “relevance” or “reasonableness”, he considered that such difference does not extend to arbitrators in British Columbia. In doing so, he made no reference to the reasons of arbitrator Bendel in Energex Tube, 2013 CanLII 67040 (ON LA) (Bendel), where arbitrator Bendel made the following points:

1. At common law, the courts have not been concerned with the manner in which evidence has been obtained in deciding whether to admit it or not;

2. The only exception to this rule in Ontario (and most other provinces) is where evidence has been obtained in violation of the Canadian Charter of Rights and Freedoms, in which case subsection 24(2) authorizes the court to exclude the evidence “if the admission of it would bring the administration of justice into disrepute:

3. In particular, even the violation of privacy legislation in obtaining evidence does not render it inadmissible [In support of that proposition, arbitrator Bendel had cited an Ontario Supreme Court decision of 2004 and a British Columbia Supreme Court decision of 2006; with the latter being Cam v. Hood, [2006] B.C.J. No. 1255 (B.C.S.C.);

4. Arbitrators who refuse to admit evidence that would be admissible in court violate the rule of audi alteram partem and their awards are subject to being overturned on judicial review: see Universite du Quebec a Trois Rivieres, [1993 CanLii 162 (SCC), [1993] 1 S.C.R. 471: and

5. In particular, the statutory discretion given to arbitrators as regards the admission of evidence does not protect their awards from judicial review where they have refused to admit relevant evidence: Universite du Quebec a Trois Rivieres …

Arbitrator Bendel had also commented that since the latter decision “was first cited in this context in 2007, none of the awards claiming that arbitrators have a discretion in the matter has addressed this Supreme Court of Canada decision.”

Finally, arbitrator Dorsey also failed to consider whether the surveillance was conducted in a public place, where there is no reasonable expectation of privacy (see the British Columbia Law Institute’s 2008 Report on its review of the British Columbia Privacy Act). See also the 1986 British Columbia Supreme Court decision in Silber, [1986] 2 W.W.R. 609, where the court found that the plaintiff’s privacy had not been violated by a television crew that filmed activities on his property from an adjoining property. It stated that “the character of the property where the act or conduct took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.”

The issue of employee surveillance is considered in much greater detail in Chapter 12 of the Illness and Absenteeism manual and its monthly supplement.

In Catalyst Paper Corporation, 2014 CanLII 16666 (BC LA) (McEwen), the employee, who had been diagnosed with multiple sclerosis some 10 years earlier, subsequently filed a claim for short-term disability benefits related to his illness. After a period of time on benefits, the employee returned to an “accommodated position.” He subsequently filed a further claim, but no evidence was tendered to establish that the employee’s MS symptoms had changed from the time that his doctor last declared him fit to return to work and the time that he said he was disabled some six months later. “To the contrary, the objective evidence – based on the reports and patient notes of [the] treating neurologist and leading MS specialist, was that the [employee’s] condition had been stable for a long time …”

The employee’s doctor had formulated a report that supported the employee’s claim. That report was discounted on the basis that the employee’s doctor was found to have been playing an advocacy role that largely ignored the advice of the MS specialist.

The employee’s doctor testified that the employee had advised him that his specialist had said that he could apply for disability, attributable to his MS, at “any time.” The arbitrator refused to accept that assertion, for “not only is it double hearsay going to the issue in dispute; it is at odds with the sum and substance of [the expert’s latest report.]”

The grievance was denied.

The matter of proof of illness and entitlement to sick leave is considered in Chapter 6 of the Illness and Absenteeism manual.

In Mosaic Potash Colonsay ULC, 2014 CanLII 23963 (AB GAA) (Hood), the employee was terminated for alleged misuse of sick leave. After having been denied vacation leave, he obtained a medical note “and took sick leave for effectively the same time as the denied vacation leave.” The employer conducted surreptitious surveillance and concluded that the employee had been working in his own landscape business during the relevant period.

The employee testified that he wanted the leave to attend his grandmother’s 84th birthday. The leave, which had mistakenly been authorized, was subsequenty revoked. The employee was extremely upset, testifying that he felt that it would not be safe for him to then operate a 75 ton underground scoop machine in the employer’s mine. He took the next day as a personal leave day pursuant to the terms of the collective agreement. On his next scheduled day, the employee was still experiencing stress, and so he advised the employer that he was not coming to work. He saw his doctor later that day. His doctor recommended that he take three weeks off work and get away from the mine site. The employee testified that he did not go to his grandmother’s birthday but stayed at home stressed.

The initial medical note simply cited “medical reasons” while a subsequent note authored immediately prior to the conclusion of the three week period advised that the employee was “off work due to situational anxiety (he requires counselling & meds).” The employee was prescribed an antidepressant and anti-anxiety medication.

The video surveillance revealed that the employee, on two consecutive days during the three week period, had operated a bobcat and performed general landscape work at one particular residence. Without informing the employee of the existence of the surveillance video, the employer was requested and provided with a list of the work performed during the three weeks. This consisted primarily of estimates and the videotaped activities that the employee explained were unpaid work for a family friend.

The employee advised the employer’s nurse that he did not apply for employment insurance sick leave benefits because when he investigated the benefits pursuant to the advice of his doctor, he discovered that there was a two week waiting period and he was of the view that the one week of benefits was not worth the bother. He had not applied for benefits under the employer’s short term disability plan, but did so after the nurse mailed him the forms. The insurer approved benefit payments for the entire three week period.

After the termination, the employer unsuccessfully sought to have the insurer revoke the benefit payments.

It was acknowledged that for the purpose of the arbitration, the employee had a clean disciplinary record.

The employer argued that no weight should be given to the doctor’s notes and medical reports because the union had not called the doctor to testify. The employer submitted that “where no medical evidence is called, the medical notes supplied by the [employee] cannot be given any weight, nor can they be relied upon by the Union and the [employee] as ‘medical evidence’ of the sickness. The notes are only evidence that a note was delivered by the [employee] to the Employer, and not proof of the contents thereof.”

After having reviewed the different arbitral approaches to the admission of medical reports, the arbitrator appeared to admit these (without the need to call their author) because the employee was honest. He stated

Honesty and attending work are fundamental obligations of an employee. Dishonesty with respect to sick leave strikes at the very core of the employment relationship. In most cases, the viability of the employment relationship is decimated if an employee lies about being sick in order to avoid attendance at work.

However, the employer had failed to establish that the employee was dishonest. At the time of his suspension pending the employer’s decision, the employee had, at the request of the employer, provided a copy of his medical file. It contained nothing inconsistent with the employee’s assertion that he had been ill. Although the employer had not accepted the contents of the medical notes, it did not pursue its concerns with “any questions it may have had of the doctor or his diagnosis … [It] did not request the [employee] get a second medical opinion or be seen by a doctor selected by the Employer.” In the circumstances the arbitrator found that “requiring the doctor to attend this hearing for cross-examination would serve no overriding evidentiary purpose.”

The arbitrator reiterated his conclusion that the employer had not proven that the employee was dishonest and not sick. Rather, the employee had been “rather honest and forthright.” He accepted that the employer had rescinded its approval for him to attend his grandmother’s birthday. It was not the refusal that distressed him, it was the manner in which he felt he was treated by the Employer.”

The employee was reinstated with all lost pay and benefits.

The issue of blameworthy absenteeism is addressed in both sections 2:400 (Conduct Inconsistent with an Illness) and 17:200 (Blameworthy Absenteeism), commencing at pages 29 and 812 respectively of the Illness and Absenteeism manual. The issue of admission of medical reports without having to call their authors is discussed in section 11:205 of the manual and its Supplement.

llness and Absenteeism.com - June 2014 Newsletter

Illness & Absenteeism In The Workplace