llness and Absenteeism.com - June 2018 Newsletter
In this edition, you will find:
A. Featured Case: An employer did not breach its duty to accommodate when it properly considered and then rejected an employee’s request for a gradual return to work. The employee’s termination for innocent absenteeism was set aside on the basis that the evidence of the employee’s excessive absenteeism did not create a rebuttable presumption that her level of absenteeism would continue into the future. [Click here]
B. Recent Decisions of General Interest
1. A four day suspension imposed on an employee for her improper access to a patient’s file was reduced to a one day suspension, with the arbitrator criticizing the employer for refusing to provide documents that would have enabled the employee to refresh her memory at the time of the employer’s investigation. [Click here]
2. An employer breached its duty to accommodate an employee when it refused to consider extending the employee’s child care leave beyond the three month maximum set forth in the collective agreement. [Click here]
3. An arbitrator upheld the termination of an employee who provided a forged doctor’s note in an effort to mislead her employer. While the employee suffered some substance abuse issues, she had failed to adduce evidence to substantiate a link between her misconduct and her medical condition. [Click here]
5. An absent employee who failed to respond to numerous voice mails and registered letters was found to have abandoned her employment. [Click here]
6. A party has an obligation to produce arguably relevant documents to which it has a right of access, even where such documents are in the hands of a third party. [Click here]
A. Featured Case: An employer did not breach its duty to accommodate when it properly considered and then rejected an employee’s request for a gradual return to work. The employee’s termination for innocent absenteeism was set aside on the basis that the evidence of the employee’s excessive absenteeism did not create a rebuttable presumption that her level of absenteeism would continue into the future.
In Toronto Community Housing Corporation, 2017 CanLII 39467 (CA LA) (Cummings), the employee had filed several grievances in which she alleged that she had been subject to discrimination, to harassment, to a failure to accommodate and finally, to an improper termination. The grievance alleging an improper termination was upheld, while the other eight grievances were dismissed.
The employee was absent for two years due to an incident where she had overheard a telephone conversation between her supervisor and a fellow employee who had been transporting her to another location. The comment was to the effect that “Janice is such a problem I want to get her off your hands.” The employee alleged that the comment constituted a threat to do her harm.
The employer was advised of the supervisor’s comment that same day and immediately suspended the supervisor without pay for a period of one week. The disciplinary letter stated in part that “Your actions while in your management capacity were unprovoked, very wrong and extremely unprofessional and you have exacerbated a work environment that our employees perceived as unsafe for them … You have received appropriate training in the workplace and ought to have known that your comments would cause harm to employees.”
The next day, the employer advised the employee by letter of the action that it had taken. It validated the employee’s reaction and expressed regret.
The arbitrator commented that the employer had immediately concluded that the supervisor “acted unprofessionally and failed to treat [the employee] with dignity and respect.” The Director of the employee’s unit had managed the situation properly on behalf of the employer. She conducted a timely investigation, she disciplined the supervisor, and she promptly conveyed the employer’s views to the employee. “The employer did everything it could have and should have. The incident was regrettable but relatively minor.”
The employee ultimately received short and long term disability benefits for the two year period. Her grievance relating to the incident was dismissed.
The employee had also grieved that the employer had made inadequate efforts to accommodate her return at points during the two year period. The arbitrator stated:
Based on the information provided by [the employee’s] treating physicians, I find that she was disabled from providing any type of work during [the two year period.] As I have noted above, during that time, the employer made appropriate inquiries about the nature of [the employee’s] disability, the nature of her restrictions and whether [she] was able to perform any work with accommodation. The employer sought reasonable and appropriate clarifications from [the employee’s] treating physicians and acted on the information. Once the employer was told that [the employee] continued to be disabled from all work, there was nothing more to be done. Returning to the words of the Divisional Court in Lane v. AGDA Group, [the employer] met its procedural obligation to accommodate [the employee] by “obtaining all relevant information about the employee’s disability”.
The Union had argued that the employer had been responsible for a delay in returning the employee to work and that its delay led to a rush to find a position for the employee prior to the expiration of her income protection benefits. That position was rejected by the arbitrator:
First, the pause was not that long. The case relied on by the union (City of Toronto v. CUPE Local 79 … September 5, 2014 (Luborsky)) involved a delay of more than 4 months (a six week work stoppage followed by a 3 month delay) in which the excuse was an overburden in the number of employees seeking accommodation. Second, [the employer] explained that they wanted to see if [the employee’s] internal complaint that their earlier offer offended [the employee’s] dignity was so found. If so, that would have affected subsequent offers. That was a reasonable position for [the employer] to take. Third, [the management person then taking the lead role in implementing the employee’s return to work] and his colleagues are human. Although counsel for the union suggested that [the employer] should have pressed forward, no matter the reaction of [the employee] and her filing of an internal complaint about the accommodation process, it would not be surprising if the people working on the accommodation became a bit discouraged and less zealous in their efforts. Fourth, and most important, as counsel for the employer argued, in the period of the delay, [the employee’s] family physician said she was not able to work.
The employee was offered a clerical position at the time that she was ready to return. She in turn asked the employer to consider other positions, and in support of that request, pointed to her earlier experience gained in three positions set forth in her prior employment history. As a consequence, the employer asked the employee to provide references for these positions and to provide a specific list of the degrees and diplomas that had been set forth in non-specific terms in that same history. The employee refused. She contended that the employer’s conduct was vexatious, for an employee seeking to be accommodated should not be asked for references in order to be placed in an accommodated position. That contention was rejected, for the employer was simply providing the employee with an opportunity to demonstrate that she possessed the additional skills that might be involved in such positions.
After the employee finally accepted a position, she advised that she required a graduated return to work, as per her psychiatrist’s recommendation, beginning with five hours per day for three days a week for the first month. The employer advised that there was no evidence to support a graduated return, that the employee had accepted the position on the basis of working regular hours and that a graduated return was not warranted. The employee in turn advised that she was going to work the recommended hours. On the first day back at work, the employee left work after five hours and did not report to work the following day.
The arbitrator concluded that the employer had not breached its duty to accommodate when it decided that it would not implement a gradual return to work. It turned its mind to the medical and insurer’s findings re the employee’s ability to return; the job was not physical in nature; and the psychiatrist’s recommendation added nothing by way of objective findings to support a graduated return. She stated:
In my view, the employer met its duty when it turned its mind to relevant information, considered the conflicting opinions using rational criteria, and made a decision for non-discriminatory reasons. In other words, [the employer] made a reasonable decision not to implement a graduated return to work … and did not breach its duty to accommodate [the employee]
The employee’s action to leave work after five hours, and then to return but only on the third day of the schedule, led to her immediate termination. The termination letter advised that the employee’s actions had given the employer just cause for her termination. It stated that the incident constituted a culminating incident that justified the employee’s summary dismissal. It further stated that that in the alternative, it deemed the employee to have resigned and/or have abandoned her employment. In the further alternative, the employment was said to have become frustrated at law due to the employee’s absenteeism during the two prior years.
The arbitrator stated that the employer could not rely on the employee’s inappropriate conduct without having first put her on notice. “It is trite law that an employer cannot later rely on conduct it has tolerated, without censure, to justify discipline. Conduct that has been condoned does not become misconduct deserving of discipline when the employer has finally reached the end of its tolerance.”
The arbitrator commented that the employer had options other than termination. It could have taken the position that the employee had been provided with a suitable offer of accommodation and that the process was at an end, with the employee then remaining outside of the workplace without pay. That issue could then have been adjudicated following receipt of a grievance from the employee.
The employer’s primary argument in support of the employee’s termination was based on excessive absenteeism. It pointed to five of the employee’s last six years as evidence of that fact. The arbitrator noted that while the employee had only worked six months in the three year period preceding her termination, her absenteeism during the last two years had been related to a single incident. The employer did not have to deal with “unpredictable random absences that arbitrators have typically characterized as the most difficult absences for employers to manage.”
The employer contended that the second part of the two part test justifying a termination for innocent absenteeism did not require that it establish that the employee’s attendance would not improve in the foreseeable future. Rather, “the employer relied on a line of case law that says where the available medical documentation raised a presumption that the pattern of unacceptable attendance will continue, the burden shifts to the union to call evidence to rebut that presumption.” The union did not. The arbitrator stated:
I do not accept the employer’s argument that [the employee’s] historical absences created a rebuttable presumption that her level of absenteeism would continue in the future. The facts before me are very different from the sort relied on in [other such cases] …
In the case before me, the [employee was given no opportunity to improve her attendance after the non-disciplinary warning that she received [while absent on LTD benefits] … I do not know how the “necessary improvements” could have taken place [while the employee] was out of the workplace. It was not reasonable for the employer to analyse whether [the employee] had improved her attendance over a period of time when, to the employer’s knowledge, she was off work and receiving disability benefits.
As counsel for the union argued, [the employee] was absent from work and receiving disability benefits because of an illness that developed after the incident [with her supervisor]. The available medical information did not suggest that [the employee] would have absenteeism problems if she was placed elsewhere [as part of her accommodation], because at no time … [during the accommodation process] has the employer suggested that [the employee’s] past level of absenteeism was a concern when it was considering where to place her or where to accommodate her …
The employer could have asked her treating physicians whether [she] would be capable of regular attendance in the future [given] that she continued to perceive that she was threatened and harassed by members of the employer’s management. It would have been reasonable for the employer to enquire into whether [the employee’s] heightened sensitivity and reaction to perceived harassment or threat from colleagues and management … would affect her prospects for regular attendance at work in the future, no matter where she was placed. But [the employer] did not ask that question.
On the facts of this case, [the employee’s] past level of absenteeism [during the two year period] does not raise a presumption that her poor attendance would continue. Consequently, the employer is not relieved from its obligation to prove that there is no reasonable likelihood that [the employee’s] attendance will improve in the future. The employer has not met the two-part test to justify the termination of [the employee’s] employment on the basis of innocent absenteeism
The union had also alleged that the employee’s employment had been terminated as a reprisal for having sought to exercise her rights under the Code. The arbitrator dismissed that contention, for the union had not established the necessary elements to make out such a case.
The employee was reinstated, with any remedies to be awarded to be determined as part of the second stage of what the parties had agreed would be a bifurcated hearing.
An employer’s obligation to accommodate, including issues related to delay and a gradual return to work along with termination for innocent absenteeism are addressed in Chapters 14 and 17 respectively of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. A four day suspension imposed on an employee for her improper access to a patient’s file was reduced to a one day suspension, with the arbitrator criticizing the employer for refusing to provide documents that would have enabled the employee to refresh her memory at the time of the employer’s investigation.
In Fraser Health Authority (Royal Columbian Hospital), 2017 CanLII 72384 (BC LA) (Bell), the arbitrator considered whether a four day suspension was warranted for the employee’s breach of the privacy of a minor patient. The patient was 13 years old and had been admitted by ambulance with a foreign object in his rectum. The nurse had accessed the patient’s file on ten occasions. Six of those occasions were found to be related to her duties as a nurse. The employee was able to provide explanations for some but not all of the remaining instances of access. The arbitrator found, on a balance of probabilities, that not all of the remaining instances were justified. At least some of the access was not required for patient care and on that basis, there was just cause for some form of discipline.
In arriving at that conclusion, the arbitrator was critical of the employer for not having provided the employee with documents or copies of an audit that would have provided the employee with an opportunity to refresh her memory with regard to the night in question. A one day suspension was imposed in place of the four day suspension that had originally been levied.
The issue of privacy breaches and resultant discipline is addressed in sections 12:500 of the Illness and Absenteeism manual and its supplement.
In Canadian Pacific Railway Company, 2017 CanLII 81911 (CA LA) (Flynn), the employee had been granted a three month leave of absence to care for her six or seven year old child who had been diagnosed with significant anxiety coupled with a tendency towards violent behaviour and difficulties with focus and self-regulating behaviour. The collective agreement set forth a three month maximum for compassionate leave.
The employee and her husband were able to retain their son in a public school, but that arrangement was dependent on one parent being available at any time in case their son had an episode. Such episodes might occur several times during a week. Only the parents were able to calm the child. The employee, who was a conductor and a locomotive engineer, lacked the flexibility that her husband had to leave his office to travel to the child’s school, and for that reason, her husband became the dedicated caregiver for the first seven years of the employee’s employment with this employer.
The need for a leave arose because of the employee’s husband having been assigned to an engineering project in South Korea for a four to six month period.
The employee subsequently sought an extension of the three-month leave because her husband’s assignment had been extended. A three week extension was granted but the employer was not prepared to go beyond that. It stated that “the compassionate leave provision does not contemplate the length of time [sought] nor does it address a situation where the accommodation is also being made for the other spouse to go work overseas for an extended period of time.”
The employee was distraught. She telephoned the employer and advised that she was off sick and that the employer should have been in receipt of medical documents to substantiate her illness. Within two weeks, the employee was “pulled out of service” and placed in an unpaid status. She was ultimately assessed a thirty day suspension when she returned to work.
The employee became very anxious upon her return to work. The arbitrator stated that the employee “believed that her Employer would not accommodate her in the future if her husband was to be called away for work again. She feared further questioning, reprisal and harassment due to her past experience with the Company.” Fearing that she had no choice, she tendered her resignation.
The Union challenged the matter, alleging that the employer failed to accommodate the employee’s family status and harassed her during the application process for her unpaid leave of absence. It contended that this caused the employee to believe that she had no choice but to resign, thus making her resignation void.
The employer contended that its obligation to accommodate was discharged when the employee turned down an offer to be accommodated in a train position in the employer’s railyard.
The arbitrator commented that the Federal Court of Appeal had recognized, in Attorney General of Canada, 2014 FCA 110 (CanLII), that child care was part of family status and thus protected under the federal Human Rights Act. In that decision, the Court re-affirmed a series of four factors that must be proven to establish discrimination:
a. The child must be under the parent’s care and supervision;
b. The childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to personal choice;
c. The individual has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
d. The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.
The arbitrator held that the employer had erred in refusing to extend the employee’s leave of absence. Given that the four factors had been satisfied, the employer needed to consider the employee’s request for an extension in view of the Human Rights Act rather than the three month leave limitation in the collective agreement. Furthermore,
The [employer] could not simply assert that operational requirements made it impossible to extend the [employee’s] leave of absence. The [employer] has only presented these claims without presenting any evidence on the matter. Therefore, it has not demonstrated that the extension of the [employee’s] leave of absence constituted undue hardship.
On the matter of the validity of the employee’s resignation, the arbitrator, after having considered the relevant authorities, concluded that the employer’s conduct was not so egregious as to constitute a constructive dismissal. Although the employee had resigned intentionally, the arbitrator concluded that the employer’s discriminatory conduct caused the employee to suffer mental distress. She awarded the employee a lump sum of $15,000 to compensate her for her pain and suffering.
The issue of child care leave is addressed in Chapter 7 of the Illness and Absenteeism manual and its supplement.
3. An arbitrator upheld the termination of an employee who provided a forged doctor’s note in an effort to mislead her employer. While the employee suffered some substance abuse issues, she had failed to adduce evidence to substantiate a link between her misconduct and her medical condition.
In Canadian National Railway Company, 2017 CanLII 81923 (CA LA) (Flynn), the employee had provided a forged doctor’s note in an effort to mislead the employer regarding her absence. During the employer’s investigation, the employee mentioned for the first time that she had a substance abuse problem.
The arbitrator commented that in cases such as this, mitigating factors might be sufficient to justify a reinstatement, but here, there were no mitigating factors that could outweigh the gravity of the employee’s acts.
Although the arbitrator considered that the employee may have been suffering from some substance abuse issues, she accepted that the employee “was terminated because she forged a medical document to evade sanctions for an unauthorized absence, not because of her substance abuse problem.” The arbitrator stated:
The Union cannot simply claim that the [employee’s] substance abuse caused her to forge a medical document; a causal link between her condition and said fraudulent link must be established. The Court of Appeal of British Columbia in Health Employers Assn. of British Columbia v. B.C.N.U. stated that:
It is important not to assume that addiction is always a causal factor in an addicted employee’s misconduct … To find prima facie discrimination, there must be evidence that the employee’s conduct was “caused by symptoms related to” the disability …
No medical evidence had been tendered to establish a link between the misconduct and the employee’s medical condition. The termination was upheld.
The issue of fraudulent employee conduct is addressed in sections 2:400 and 17:201 of the Illness and Absenteeism manual and its supplement.
In United Airlines, Inc., 2017 CanLII 79369 (CA LA) (Lanyon), the issue centred on the admissibility of electronic documents emanating from the employer’s ticketing and reservation system. The union argued that the employer failed to properly authenticate the ticketing transactions and failed to comply with the best evidence requirements.
The arbitrator admitted the documents on the basis of sections 30 and 31 of the Canada Evidence Act. This decision is instructive, for it considers the few decisions that have dealt with electronic documents and also references several scholarly publications that provide perspective and guidance regarding the issue.
Provisions governing the admissibility of matters falling within provincial jurisdiction will be governed under the evidence act of the particular province.
In Canadian National Railway, 2017 CanLII 75527 (CA LA) (Clarke), the employee, who had been absent on disability, failed to respond to numerous voice mails and registered letters from the employer seeking further medical information. His termination on a non-disciplinary basis was upheld.
Arbitrator Clarke noted that the employee short-circuited the tripartite accommodation process by refusing to stay in touch with the employer or respond to its legitimate requests for additional information. He cited two earlier decisions in support of that position:
(i) In CROA&DR 3847, Arbitrator Picher concluded that an employee absent for medical reasons had abandoned his employment:
The fact of an injury or medical leave of absence does not absolve an employee from his or her responsibility to communicate on a reasonable basis with his or her employer. I do not consider that it was inappropriate for the Company to seek the medical updates which it did nor to confirm, given the apparent long silence from the [employee] that he intended to continue his employment at CN. His failure to give any response is, in my view, evidence which the Company could use to conclude that he had effectively abandoned his employment. In the Arbitrator’s view this is not a circumstance in which the Company was under an obligation to conduct a disciplinary investigation, as the action taken constituted a non-disciplinary, administrative closure of [his] employment file. For the reasons related above, I am satisfied that [the employee] is the author of his own misfortune and that he did, as the Company asserts, effectively abandon his employment.
(ii) In CROA&DR, arbitrator Schmidt concluded that a failure to communicate amounted to the abandonment of a position:
In this case the [employee] failed in fulfilling his obligation of communicating with the Company after his medically supported leave became an unauthorized leave of absence. Even if I accepted that the [employee] informed the Company that he was leaving the country on October 11, 2012, which I do not, the [employee] had ample opportunity upon receipt of the Company’s and [the insurer’s] correspondence upon his return on November 22, 2012 to communicate with the Company. He did not do so. In such circumstances the Company was entitled to close his employment file. There are no mitigating circumstances, such as a clean disciplinary record or extraordinary years of service with the Company that would warrant my considering the [employee’s] reinstatement.
Arbitrator Clarke also relied on an employee’s obligation to effect an accommodation:
In a situation involving the duty to accommodate, the employee has obligations which, if not met, will end the employer’s continuing duty. Accommodation is not a one-way street, as noted in CROA&DR 4504:
The duty to accommodate does not only apply to the employer. The employee has significant obligations as well. For example, an employee may lose an entitlement to any further accommodation if he/she turns down a reasonable accommodation offer. Similarly, an employee loses the right to maintain an employment relationship, despite providing no services, by failing to provide the important medical information and updates an employer requires when managing an accommodated work scenario.
The finding of abandonment was upheld.
The issues of abandonment and deemed termination of employment are considered in section 16:300 of the Illness and Absenteeism manual and its supplement.
In Canadian Pacific Railway, 2017 CHRT 25 (CanLII) (Perrault), the adjudicator addressed a request for production of documents. In doing so, the adjudicator stated in part:
The [employee] cannot simply request disclosure of all documents concerning certain individuals because she feels it would be helpful. This would amount to a fishing expedition. …
In response to another production request (for telephone call records), the employer responded that it had no document in its possession that related to the particular request. The employee then cited the Tribunal’s decision in Gambler First Nation, 2017 CHRT 13 (CanLII) … as an example of a case where the Tribunal ordered a party to produce documents that were in the possession of a third party. The adjudicator further stated:
The obligation to produce even when a document is in the hand(s) of a third party was also recognized by this Tribunal in another decision, Rai v. Royal Canadian Mounted Police, 2013 CHRT 6 (CanLII) [The employer], as a customer of a cell phone provider, is indeed in a position to obtain such documents and information like cell phone records from its provider. To oppose the production of a document or documents in the possession of a third party but on which it has a right of access doesn’t respect the spirit of Rule 6 [dealing with disclosure and production of documents]. On that argument, I agree with the [employee]. But this is not sufficient to order the [employer] to produce such documents. Indeed, such documents must be relevant. And arguable relevance must be assessed in the context of the case in which the disclosure order is being sought … The Tribunal notes that the facts the [employee] is trying to establish through these documents – her state of mind – can be better addressed through [her] testimony at the hearing as well as through medical reports than by cell phone records which would only establish time and location of calls.
The issue of production of documents is considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.