Illness & Absenteeism - June 2021 Newsletter

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Welcome to the June, 2021 issue of the Illness and Absenteeism newsletter.  In this issue, you will find:

A. Featured Case:

The termination of an employee who had engaged in a one day “sick leave” fraud while working from home during the pandemic was upheld, in part because she had not been forthright during the employer’s investigation. [click here to read more]

B. Other Decisions of General Interest

  1. As a general rule, a non-grieving employee will be denied standing at an arbitration hearing unless her rights are likely to be directly affected.[click here to read more]
  2. An arbitrator upheld an employee’s termination on the basis that the employee had failed to comply with an earlier arbitral order. [click here to read more]
  3. An employee failed to establish that she was suffering from a disability after having been denied additional time off following a dental extraction. [click here to read more]

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A. Featured Case

The termination of an employee who had engaged in a one day “sick leave” fraud while working from home during the pandemic was upheld, in part because she had not been forthright during the employer’s investigation.

In Insurance Corporation of British Columbia, 2021 CanLII 28564 (BC LA) (Peltz), the employee was a part-time customer service adjuster who had been working remotely from home. She had previously reduced her work schedule to two days per week (i.e. Saturdays and Sundays) due to family responsibilities. The employee’s anniversary fell on the weekend in question, and she and her husband had planned to spend this particular weekend at a local resort. However, she had requested the Saturday and Sunday off via the employer’s on-line scheduling system but both days were denied. After several further attempts, the system approved her absence for the Sunday (but not the Saturday).

The employee and her husband checked into the resort for the Saturday and Sunday. Prior to her start time on the Saturday, she telephoned the employer’s staff information line and spoke to a coordinator as per the existing practice. She advised that she was ill and unable to work and the coordinator entered that day as a sick day in the employer’s attendance system. Unbeknown to the employee, the employer’s attendance system automatically flagged the fact that she had now reported that she was ill on a day that had previously been rejected as a vacation day. Management then began an investigation by conducting a “social media scan”, with the scan revealing an Instagram post of the employee celebrating at a resort that weekend.

When the employer investigated, it was told that the trip was a last minute decision and that the employee had intended to work the Saturday remotely from her hotel room, but had been unable to do so because of her migraines. The employer did not believe the migraine account and characterized the employee’s actions as an abuse of sick leave. It also alleged that the employee had not been forthright when interviewed. Her employment was terminated, for the employer concluded that the trust required for a viable employment relationship had been irreparably damaged.

Arbitrator Peltz stated that the whole case turned on the credibility of the employee’s claim that she intended to work but was sick with a migraine headache on the Saturday. He concluded that the investigation was conducted fairly and had given the employee full opportunity to respond. He referenced Bradshaw v. Stenner, [2010] B.C.J. No. 1953 (S.C.), affirmed at 2012 BCCA 296 and the 1952 B.C.C.A. Faryna v. Corney decision on which it had been based. He noted that the Bradshaw decision suggested a methodology that should be adopted when considering a witness’s testimony:

It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is inherently believable. Then, if the witness’s testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally the court should determine which version of events is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” …

Arbitrator Peltz continued:

There is no precise formula for assessing credibility but the commentary in Bradshaw is helpful in the present case. Is the [employee’s] testimony believable on a stand-alone basis? Next, is the testimony consistent with other witnesses or documents? Finally, which version of events is the most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?

Arbitrator Peltz commented that as ‘stand-alone’ testimony, the employee’s account was potentially believable. However, was it inherently believable?  Applying “common sense and the vagaries of human experience” to the circumstances, he concluded that it was not. He considered the testimony to be suspicious and agreed that the employee’s overall story bore the hallmarks of a “manufactured account”.

He then considered whether the employee’s testimony was consistent with other evidence and documents. He commented that

here is where the union’s case begins to fall apart. The employer argued that there were contradictions between the [employee’s] interview responses and the evidence at arbitration. In litigation, not every inconsistency undermines the credibility of a witness. However, I agree with the employer that the flaws in the [employee’s] testimony were extremely damaging, as they related to key aspects of the [employee’s] story.

After having considered the inconsistencies, arbitrator Peltz stated that the employee’s testimony was not consistent with independent documents and the testimony of other witnesses. In addition, there were other facts dealing with the employee’s health that day that supported a conclusion that there was sick leave abuse. He found against the employee on the issue of credibility. She had committed sick leave fraud. “This was not a mere misunderstanding”. She had compounded the offence when she failed to be forthright during the investigation and repeated an untruthful account of her absence from work.

Arbitrator Peltz stated that the most troubling aspect of the case centred on the question of rehabilitative potential.  He referenced the City of Kamloops case, where the arbitrator had stated:

On the question of ‘rehabilitative potential’, one of the primary benchmarks is [an employee’s] candour and admission of wrong doing not only at the time of the hearing, but also at the earliest opportunity when the matter is being investigated

Here, however,

the [employee’s] conduct has been characterized by deceit and denial from start to finish. There has been no acknowledgement of wrongdoing, no apology and no evidence of remorse.

It was significant, in the arbitrator’s view, that the employee had failed to acknowledge that in retrospect, she would have done things differently. The misconduct had not been committed on the spur of the moment, but rather was clearly planned and premeditated.

The penalty of termination was upheld.


B. Other Decisions of General Interest

1. As a general rule, a non-grieving employee will be denied standing at an arbitration hearing unless her rights are likely to be directly affected.

In Ontario Public Service Staff Union, 2021 CanLII 23395 (ON LA) (Price), the employee had been terminated because he had allegedly sexually harassed another employee. That employee applied for “standing” to participate in the upcoming arbitration hearing. Standing was denied, with the arbitrator stating that as a general rule, it is only in exceptional circumstances that third parties may be permitted to participate in a hearing. Arbitrator Price stated:

Two seminal cases … arose out of labour arbitration hearings where success on the union’s grievances would result in bargaining unit employees being displaced or otherwise losing their jobs. [Since then], arbitrators have applied the fundamental principles of natural justice and procedural fairness to grant third party standing to employees whose legal rights, status, or statutory or contractual entitlements would be directly affected by the determination of a grievance. An indirect interest in a proceeding is not sufficient.

… In this case …, the complainant’s claim for standing is based on her interest in protecting her reputation and privacy … The complainant fully supports the Employer’s decision to terminate the grievor’s employment based on the grievor’s alleged sexual harassment of her … The Union opposes the complainant’s request for third party standing. While it [understands her concerns], it submits that she has not demonstrated that she will be directly and necessarily affected by the outcome of this proceeding.

The motion was denied on the basis that the complainant’s interests were “fully aligned with those of the employer” and she had nothing significant to add to the proceeding … [The employer’s position] aligns precisely with the complainant’s view of the matter. The complainant has not identified anything that she would bring to the proceeding that will not otherwise be brought by the employer. Indeed, the employer has confirmed that it will call the complainant as a witness, if not its key witness, as it attempts to prove its case.”

Arbitrator Price commented that the complainant relied on London (City), 2004 131 L.A.C. (4th) 56 (Lynk), where arbitrator Lynk concluded that an employer’s supervisor should be granted standing because his reputation was threatened by the proceedings. It was his view that “natural justice required that the supervisor be granted standing because he had been “accused of intentionally, maliciously or negligently breaching someone else’s human rights” and was at risk of acquiring an “odious persona” as the result of the arbitration proceeding” … That was not an issue in this case. The complainant’s request for standing was denied.


2. An arbitrator upheld an employee’s termination on the basis that the employee had failed to comply with an earlier arbitral order.

In Baycrest Centre for Geriatric Care, 2021 CanLII 39447 (ON LA) (Gedalof), the union sought to adjourn the hearing while the employer sought to dismiss the grievance on the basis of the employee’s failure to comply with an outstanding production order.

Arbitrator Gedaloff dismissed the grievance. He began by setting forth the general principles established by the authorities:

(i) The first issue is whether arbitrators have the power pursuant to the Ontario Labour Relations Act to dismiss a grievance on the basis of the request made by the employer. He concluded that they do. That principle is consistent with the old adage of the courts that where there is a right, there is a remedy.

(ii) The issue then becomes whether the power should be exercised. Here, he decided that it should. Although the then current version of the Ontario Labour Relations Act no longer contained such a provision, the immediately preceding version did, and numerous arbitrators have since found that the power to make production orders must also include the authority to give meaningful effect to those orders, including by dismissal of the grievance where a party refuses to comply.

(iii) An arbitrator should not lightly dismiss a grievance by reason of an abuse of process, and outright dismissal of a grievance by reason of an alleged abuse of process should only occur in the clearest cases … It must be remembered that the grievance and arbitration process was established to settle employment related disputes in a relatively expeditious and inexpensive manner. Within this context, it is reasonable to expect that the [employee] who is a party to that process, cooperate with reasonable requests made of him by his union, attend and participate in the hearing set up to deal with his grievance, and comply with the directions or orders of the arbitrator. [An employee’s] failure to attend and his subsequent failure to comply with an order made in an interim award will result in additional time and expense to both the union and the employer. Where [an employee] fails to cooperate and comply with orders, without good excuse, and where this failure frustrates the arbitration process and results in additional time and expense to the union and the employer, there may be good reason to dismiss the grievance.

One ought not to exercise this discretion lightly, particularly in a matter as significant as a discharge grievance. Factors that merit consideration are the clarity of the arbitral order, whether the non-compliance is shown to have arisen out of a deliberate disregard for the arbitrator’s order, and whether other less extreme measures, such as drawing adverse inferences, prohibiting the admission of documents that have not been produced, granting an adjournment or possibly awarding costs could not fairly remedy the non-compliance. However, in processing a grievance under a dispute resolution procedure that is intended to provide a resolution to the dispute in a reasonably expeditious and inexpensive manner – it is reasonable to expect that the [employee] who is a party to that process, cooperate with reasonable requests made of him by his union, attend and participate in the hearing set up to deal with his grievance, and comply with the directions and orders of the arbitrator.

In this particular case, the employee did not bother to attempt to comply. It was only until well after the deadline for compliance that she provided a bald statement on the day of the hearing, well after the deadline for production and without any particulars or any supporting materials. “Such a bald and unsupported assertion is simply not sufficient to overcome the reasonable inference that the employee has chosen to ignore the production order and to not cooperate with processing of this grievance.”

An additional factor that weighed in favour of dismissing the grievance was the broader context in which the grievance took place. The grievance was one of several that arose out of an alleged scheme of benefit fraud. The union and the employer had proceeded in good faith, but the employee’s failure to do so had resulted in additional delay and expense to the parties. Arbitrator Gedalof considered that “there [were] other grievances in line behind this one, all of which give rise to potential ongoing liability and which are demanding of the parties’ time and resources. In light of the employee’s lack of cooperation, the parties should be permitted to turn their attention and resources to resolving those matters.”

The motion to adjourn was denied and the grievance was dismissed.


3. An employee failed to establish that she was suffering from a disability after having been denied additional time off following a dental extraction.

In 888 Best Tourism Inc. and another, 2021 BCHRT 60 (CanLII) (Chen), the employee claimed that the employer had discriminated against her by not accommodating her request for a reduced work schedule following a dental extraction.

The employee worked on a part-time basis at the employer’s hotel to cover another who was on leave. She was granted two days off to have two teeth extracted. On the second day, the employee messaged the employer and requested that she have three hours off on what was to be the third day. The employer did not respond. The employee ultimately worked 5 ½ hours on that day, but noticed that her hours had been reduced for the following week. When she inquired why, the employer implied that he was unhappy that the employee had not requested the additional hours off when she had made her initial request for time off.

In responding to the employee’s allegation of discrimination, the employer contended that the employee had no reasonable prospect of establishing that she had a physical disability or that the employer had perceived her to have had one, for her dental condition did not meet the criteria of having “a certain level of severity, permanence, and persistence.” It relied on Marcon Construction (also referenced as Stevenson), 2020 BCHRT 80 (CanLII) (Cousineau), where the Tribunal held that the complainant had no reasonable prospect of success in proving that her abscessed tooth constituted a disability.

Here, adjudicator Chen stated that the employee had failed to provide evidence that her dental condition was not a short-term temporary issue. She concluded that there was no reasonable prospect that the employee could establish that her dental condition was a physical disability that was protected by the Code. “There is nothing to suggest that people who have dental surgery face stereotype, stigma, exclusion or marginalization. The degree of impairment and functional limitations in her case [were] not severe, permanent or persistent.”

The adjudicator commented that her decision did not mean that what the employer “did was fair or right.”

The Code does not protect people from all types of poor behaviour. It only protects people if their situation falls within the scope of the Code’s protections …