llness and Absenteeism.com - December 2019 Newsletter

In this edition you will find:

A. Featured Article: The World Health Organization (“WHO”) has recently issued a more detailed definition of “occupational burnout.” “Burn-out” is not classified as a disease but rather is considered an “occupational phenomenon”.    [Click here]

B. Recent Decisions of General Interest

1. An arbitrator ordered a predecessor union to disclose text messages that would establish that the grieving employee had counselled a witness to lie on her behalf in her earlier arbitration. No category of privilege was available to protect against  such disclosure.     [Click here]

2. A non-profit organization which was mandated to alleviate the effect of poverty on vulnerable populations was held to the same standard as other employers when formulating a reasonable settlement proposal to address its discriminatory conduct vis a vis its own employees.    [Click here]

3. An arbitrator upheld the termination of an employee who had provided her employer with a fraudulent medical certificate. The employee had sought to establish that her actions were attributable to undisclosed anxiety and depression.    [Click here]

4. The termination of an employee was upheld where she failed to submit medical evidence to support her absence of three or more days.    [Click here]

 


 A. Featured Article: The World Health Organization (“WHO”) has recently issued a more detailed definition of “occupational burnout.” “Burn-out” is not classified as a disease but rather is considered an “occupational phenomenon”.  

A recently issued World Health Organization bulletin defines “burn-out in the following terms:

“Burn-out” is a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed. It is characterized by three dimensions:

                • feelings of energy depletion or exhaustion;
                • increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and
                • reduced professional efficacy.

Burn-out refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life.”

Dr. Shainna Ali, a respected mental health counsellor and a contributor to Psychology Today, has identified five signs of workplace burn-out. Dr Ali advises:

1. The individual finds it difficult to cope with his or her workplace stress.

While the World Health Organization highlights that burnout syndrome is more than stress, stress is the core of the concern. Coping encompasses the methods utilized to moderate stressors. A key difference between stress and burnout is that stress may be moderated by coping whereas burnout develops out of the unsuccessful attempts to cope with workplace stress over time.

2The individual is drained from work.

When you are experiencing burnout you may find yourself to be exhausted or depleted from work. In a severe situation, this level of energy is disproportionate to what you have experienced typically. For example, you might recall a time in which you invested the same amount of hours, yet left feeling invigorated from your efforts. On the other hand, if you are experiencing burnout, a typical shift may be more mentally, emotionally, and physically exhausting than in the past.

3. You do not find pleasure in your work.

While your job may be exhausting, the feeling of being connected, purposeful, and fulfilled by your work investment may protect you from workplace stress. Conversely, when you are burnt out, you may not be able to find your work pleasing at all.

4. You have negative feelings about work.

When you think about work, notice the emotions that arise. Do you find that you are inundated with negative sentiments and cynicism? When you are experiencing burnout, you may find it difficult to recognize and connect to positive sentiments pertaining to the workplace. Instead, it may feel as though you are flooded with negative, intense emotions.

5. You no longer believe in your ability to accomplish your work obligations.

Dr Ali comments that the WHO changes acknowledging this expanded definition are set to go into effect in 2022.

The WHO website (www.who.int) also contains an extremely informative article entitled Stress at the Workplace. It states in part:

What is work-related stress?

Work-related stress is the response people may have when presented with work demands and pressures that are not matched to their knowledge and abilities and which challenge their ability to cope.

Stress occurs in a wide range of work circumstances but is often made worse when employees feel they have little support from supervisors and colleagues, as well as little control over work processes …

Pressure at the workplace is unavoidable due to the demands of the contemporary work environment. Pressure perceived as acceptable by an individual, may even keep workers alert, motivated, able to work and learn, depending on the available resources and personal characteristics. However, when that pressure becomes excessive or otherwise unmanageable it leads to stress.

The foregoing article identifies causes of work-related stress and references scientific papers on the topic.

Psychiatrists in North America rely on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Health Disorders (DSM V.). Burn-out is not recognized in the DSM-V as a distinct disorder, but a recent study by Bianchi et al concluded that about 90% of workers with full-blown burn-out meet the DSM V diagnostic criteria for depression.

The foregoing commentary is meant to provide general information on the topic of stress and burn-out. Readers should understand that articles such as this cannot be relied on in the context of an arbitration. In such case, evidence regarding these topics, and the extent to which they qualify or do not qualify as an illness, must be tendered through medical personnel who are fully qualified to give evidence on such matters.

 


B.     Recent Decisions of General Interest

1. An arbitrator ordered a predecessor union to disclose text messages that would establish that the grieving employee had counselled a witness to lie on her behalf in her earlier arbitration. No category of privilege was available to protect against  such disclosure.  

In Overwaitea Food Group (No. 2), 2018 BCHRT 84 (CanLII) (Cousineau), the employer applied for an order that the employee’s previous union disclose certain text messages that it obtained in the course of representing the employee. Disclosure was ordered of messages that were sent between the employee and a witness during a certain period. The employee’s counsel was to be given the opportunity to review the text messages before disclosing them to counsel for the employer.

Those messages apparently established that the employee had coached a witness to lie on her behalf with respect to one of the matters at issue.

The employee had argued, among other things, that the text messages were only relevant to her credibility, which was a collateral issue in the proceedings. The adjudicator rejected that argument:

There is no doubt the messages are relevant to credibility, and that is a primary reason that [the employer] seeks their disclosure. However, the credibility relates, at least arguably, to a critical fact at issue in the complaint. In this regard, the complaint is distinguished from those relied on by the employee, in which parties sought documents that sought merely to call into question a witness’s credibility generally, and not in relation to a specific fact at issue in the complaint … The employee’s place of residence is at issue in the complaint, and – subject to the Tribunal’s eventual ruling about the use of after-acquired evidence – her credibility with respect to that issue is not collateral …

The employee had also argued that disclosure would amount to an unreasonable invasion of privacy. In rejecting that contention, the adjudicator stated:

I am … unpersuaded by the employee’s arguments that disclosure would amount to an unreasonable invasion of privacy. Full and fair pre-hearing disclosure of documents is almost always invasive of a person’s privacy. Participants in the Tribunal’s process are routinely required to disclose personal medical information, private diary entries, emails, text messages, and social media posts. I have no doubt that the persons involved in any such communications, particularly intimate communications, would have expected that the communication would remain private. However, that human expectation does not generate a limit, under the law, of what a party is required to disclose to ensure a fair hearing of a dispute on its merits. The limits of disclosure are set by the bounds of arguable relevance, and subject to limited exceptions of privilege. The Tribunal’s Rules [Rule 23.1] ensure that documents obtained through its disclosure process remain as private as reasonably possible, by prohibiting their use outside the Tribunal’s process …

[There is] no basis on which privilege could attach to the text messages. The messages did not arise in the context of a grievance proceeding. They are not communications between the employee and her union. Similarly, they did not arise in the context of settlement negotiations, or the giving or seeking of legal advice. Rather, they arose between two friends. The employee has cited no precedent for applying a case-by-case precedent to text messages between friends, and I can see no principled basis on why I would extend privilege in these circumstances. Text messages between friends are routinely disclosed in the course of legal proceedings. While they may be personal, embarrassing, or even incriminating, they are not privileged.

The adjudicator ordered that the messages be first disclosed to the employee’s counsel to review to ensure that there was nothing within them that raises issues that could not have been forseen in the context of this application. He stated that “if counsel discovers anything within the text messages that may be exceptionally invasive of a person’s privacy and bears no arguable relevance to the complaint, they may apply to me to redact that information.”

The adjudicator further stated:

I emphasize that any such application should be based on exceptional and unforeseen circumstances only, and not on the basis of a line-by-line argument about relevance and privacy. For example, if the text messages contained potentially prejudicial information about persons currently employed by [the employer] that bear no possible connection to the complaint, there could be a basis for their redaction.

Issues regarding document disclosure and production are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.

 


2. A non-profit organization which was mandated to alleviate the effect of poverty on vulnerable populations was held to the same standard as other employers when formulating a reasonable settlement proposal to address its discriminatory conduct vis a vis its own employees.  

In Penticton and Area Access Society, 2018 BCHRT 102 (CanLII) (Korenkiewicz), the employer sought to dismiss the employee’s complaint, pursuant to s 27(1)(d)(ii) of the British Columbia Code on the basis that the employer had made a reasonable settlement offer.  The Tribunal considered the “reasonable factors or elements” of an offer to settle as set forth in Issa v. Loblaw Co., 2009 BCHRT 264 (CanLII).

The employer was a non-profit organization whose primary mandate was to alleviate the effect of poverty on vulnerable populations. It was funded through grants that enabled it to run a disability advocacy program, a legal advocacy program and a community outreach program.

The adequacy of an offer to settle requires consideration of a number of factors, one of which is “whether the monetary settlement offered was within the reasonable range that the Tribunal might award if the complaint were found to be justified.” In explaining the rationale for its offer of $2,500 in damages, the employer stated that to pay the employee a greater sum would severely restrict its operational mandate and result in one of its programs being “shut down. The adjudicator rejected that rationale:

This improperly focuses the offer on the Society’s work and ability to pay rather than compensating [the employee] for discrimination contrary to the Code. While I appreciate that the Society does important work … the purposes of the Code are to address and remedy discrimination. In that regard, the Society’s obligations under the Code are no different than those of any other employer.

The offer to settle was dismissed as being unreasonable.

The terms of a reasonable offer of settlement that might justify the dismissal of a complaint are considered in section 14:703 of the Illness and Absenteeism  supplement.

 


 3. An arbitrator upheld the termination of an employee who had provided her employer with a fraudulent medical certificate. The employee had sought to establish that her actions were attributable to undisclosed anxiety and depression.   

In Saskatchewan Telecommunications (Sasktel), 2018 CanLII 6387 (SK LA) (Shapiro), the employee was terminated after submitting a forged medical certificate for her absence the previous day. She had created the certificate by copying and pasting from an earlier form. She had not seen her doctor as stated on the form. The termination was based on dishonesty, fraud, submitting a falsified claim, gross misconduct and violation of the employer’s Code of Conduct.

The union admitted the misconduct but contended that the employee’s actions resulted from her then undisclosed depression and anxiety.

The union asserted that it was inappropriate for the employer to have surreptitiously communicated with the employee’s physician. The employer’s witness testified that no confidential information was sought; with the communication being solely in respect of whether the employee had seen her doctor on the date stated in the forged medical absence certificate. The employer also provided the clinic with both an earlier medical absence certificate and the allegedly fraudulent certificate for the purpose of comparison. The arbitrator commented that there would have been no violation of patient confidentiality assuming that both certificates were genuine and had originated with the clinic. He also commented that in the case of apparently serious misconduct that could have significant repercussions, “basic non-invasive fact checking” was appropriate.

The employer relied on several arbitration decisions in support of the proposition that falsification of medical documentation is a very serious offence that irreparably damages the bond of trust between an employer and its employee.

The arbitrator stated that

An employer bears the onus of establishing the reasonableness of termination as the disciplinary penalty and that fraud and forgery, even if proven, do not always result in termination. Rather, arbitrators apply the proportionality analysis that applies generally to discipline cases.

The arbitrator summarized the union’s case as resting largely on the employee’s mental and emotional state at the time of the offence, and its impact on her conduct. He considered the following factors:

There is no independent evidence of the [employee’s] condition on [the day in question.] At best, at some point that day she experienced a panic attack, which as [her doctor] testified, generally lasts a matter of minutes. What is known is that she had the wherewithal to locate a previous [medical absence certificate], cut and paste or tape portions, and methodically generate a false report to support her absence …

There is no medical evidence, nor supportive evidence from family, friends or former co-workers as to the [employee’s] condition in the year prior to the events in question, or the reasons for her failing to seek professional help …

A number of factors cast significant doubt on the credibility of the [employee’s] testimony as to her medical state at the material times … [She was not necessarily being deliberately untruthful in her testimony, for it was equally possible that she had honestly come to interpret events in the  in the manner she testified to], but if that is in fact the case, her interpretations and beliefs are not reliable when weighed against known facts and do not support the union’s submissions regarding rehabilitation …

… Given that the [employee] first sought professional help for anxiety and depression only after filing a grievance for her dismissal, a considerable degree of caution is justified before relying heavily on the medical diagnoses thereby provided …

… While I have no reason to doubt the sincerity of [her doctor’s] testimony, her diagnosis of anxiety and depression, and certainly the severity of such conditions, are suspect given that they were based entirely on the [employee’s] self-reporting, which occurred in the context of her recent dismissal and resulting grievance.

… Carefully considering the totality of the evidence and the lack of any prior medical or counselling record or evidence from the counsellors that the [employee] has seen, it cannot be concluded with any degree of confidence that she was suffering from serious anxiety or depression at the time of the events in question.

Moreover, even viewed at its very best, had such condition been proven to exist at that time, no causal connection has been established between the [employee’s] emotional state and her conduct … it has not been proven that she was suffering from any medical or mental health condition … that rendered her incapable of understanding the culpability of her conduct. It simply cannot be said that she was not mentally responsible for her conduct.

… [The employee’s various actions] cast serious doubt on the union’s assertion that this was a single aberrant issue. [The employer] would never be able to absolutely trust the [employee].

The [employee’s] apology, [which came at the hearing three years later] was a matter of “too little too late.”

The arbitrator stated that “in the end, the union has failed to establish mitigating factors sufficient to justify the use of the arbitrator’s discretion to apply some lesser penalty and reinstate the [employee] who was terminated for cause.”

The issue of fraudulent claims for sick leave is considered in section 2:400 and 17:01 of the Illness and Absenteeism manual and its supplement.

 


 4. The termination of an employee was upheld where she failed to submit medical evidence to support her absence of three or more days.      

In Shippers Supply Inc., 2018 AHRC 2 (CanLII) (Archibald), the employee alleged that the employer had improperly terminated her because of her physical disability.

The employee, who had been employed as a receiver, suffered a workplace injury in 2009. She was subsequently accommodated in a repack position. The repack position, which involved less physically demanding work, later became her permanent work assignment.

The employee was terminated in March of 2011 because of her unexcused absence from work during the period from February 25, 2011 to March 11, 2011.

The employee contended that a medical note that she obtained was sufficient to cover the entire period of her absence.

The adjudicator commented that the preliminary step in the analysis of the complaint was to evaluate the evidence to determine whether a prima facie case of discrimination had been established. She considered the three step test established by the Supreme Court of Canada in Moore v. British Columbia (Education) 2012 SCC 61 (CanLII) at para 33, where the Court stated:

… to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact …

The adjudicator commented that while the test was set out in a case involving discrimination in the context of a service, it is generally applicable to human rights cases involving discrimination in employment.

On the first question, medical evidence had established that the employee was suffering from a physical disability involving her back around the time of her release from employment. On the second question, i.e. the presence of an adverse impact, the adjudicator commented that the loss of the employee’s employment constituted an adverse impact.

The third question was whether the employee’s physical disability was a factor in the loss of her employment. The adjudicator answered this question in the negative.

It was agreed that a workplace absence of three days or longer for medical reasons required a physician’s note to support the absence. The employee had provided such a note when absent for the period from February 14 to 17, 2011. She then returned to work and worked until absent for the period from February 25 until March 11, 2011, at which time she was terminated. The only physician’s note that she obtained during this period was one dated February 28. She had not provided it to the employer but merely referenced it in a conversation with her employer on that date. The adjudicator stated that on its face, this note did not constitute a physician’s note excusing the employee from attendance at work. She commented that it may have been that the employee assumed that the note would satisfy the notification requirement but “if so, it was a flawed assumption as the note does not contain information to support any physical condition or disability that would excuse [the employee] from attendance at the workplace.” The adjudicator further stated:

[The earlier] note of February 14, 2011 was explicit. [The employee] was unable to work. [The subsequent doctor’s note] makes no similar statement and on a clear reading, it does not support that interpretation. It is not a physician’s note indicating that [the employee] would be absent for medical reasons. It is, at best, cryptic and vague without mention of the ability to report for work or the recommendation to stay away.

The adjudicator concluded that

In the circumstances of this case, the evidence satisfies me that [the employee’s] employment was terminated because of her unexplained absence.

The complaint was therefore dismissed.

Issues regarding proof of illness are addressed in Chapter 7 of the Illness and Absenteeism manual and its supplement.