llness and Absenteeism.com - March 2018 Newsletter
In this edition, you will find:
A. Featured Case: Hearsay evidence may be admissible in a health care arbitration where the patients who would have given direct evidence were elderly, frail or no longer available because of relocation or death. [Click here]
B. Recent Decisions of General Interest
1. The termination of a short-term employee for sleeping on the job was upheld where the employee was to have been monitoring possible flare-ups from a plant fire that had occurred earlier that day. [Click here]
2. The termination of an employee who failed to provide documentation to justify her continued absence was upheld pursuant to the deemed termination provisions of the collective agreement. [Click here]
3. A complaint of harassment must be established on an objective basis, in that the alleged harasser must have or ought to have known that the course of comment or conduct was vexatious and would be unwelcome. [Click here]
5. A ten day suspension for sleeping on the job was reduced to a one day suspension where the employee was found to have fallen asleep during a workplace demonstration. [Click here]
6. Reinstatement was denied to a 71 year old educational assistant who had been improperly terminated for having abandoned his position. He was awarded damages calculated on the basis of 1.25 months wages for each of his 13 years of service plus a 15% top up to compensate for lost benefits. [Click here]
A. Featured Case: In Winnipeg Regional Health Authority (Seven Oaks General Hospital), 2017 CanLII 75468 (MB LA) (Freedman), the arbitrator addressed the issue of hearsay evidence in the context of an arbitration where the patients were elderly, frail or no longer available because of relocation or death.
The arbitrator stated:
On a number of occasions during the testimony of some Hospital witnesses, the Union objected to the admissibility of certain evidence because it was hearsay. The evidence was given by [the Patient Care Manager] or by a nurse who was testifying what [she or he] was told by a patient. The evidence was clearly hearsay if it was tendered as proof of the truth of what the patient said. Having in mind the latitude extended in an arbitration to such matters (see s. 120(1)(d) of the [Manitoba Labour Relations] Act, which provides that an arbitrator may receive and accept such evidence and information as the arbitrator deems fit, whether the evidence or information is admissible in a court of law or not), I permitted the Hospital to adduce virtually all such evidence, reserving until this decision my formal holding on admissibility, reliability and necessity and weight.
As but one of many examples, I refer to the evidence [of one of the nurses called by the Hospital]. He said that when the [employee] was coming out of [one of the patients’ rooms] “he was upset about what had transpired … and while he was walking to the unit, he stated that the patient was ‘demanding’ and that she was a ‘nasty bitch.’” That evidence of what the [employee] said and what [the witness] heard was direct evidence, not hearsay. The patient later called again and [the witness] responded. She asked that he take her to the bathroom because, she told him: “the fat Health care aide had called her a bitch.” The Union objected to the admissibility of the last comment, as hearsay. [The witness’s] evidence of what the patient said, that is, she heard the [employee] call her a bitch, is not hearsay, but his evidence on that comment, to be accepted as proving that she did, in fact, hear the [employee] call her a bitch, is hearsay. In this particular case, the admission of the [employee] as to what he said, and the physical proximity of the patient when he said it … renders unnecessary a detailed hearsay analysis regarding the comment, which I accept was heard by the patient.
The Hospital did not call any patients to testify. Their evidence would, of course, have presumptively been strong evidence of the [employee’s] interactions with those patients. The Hospital said that it did not call such evidence from patients because all were elderly and frail, one had left Manitoba and one had died. Some of the patients, it said, had been described as alert and oriented, and their statements should be considered reliable. It also said, correctly, that its case did not rise or fall on the hearsay evidence being accepted for its truth …
… The essence of the approach followed by labour arbitrators is concisely stated in Brown & Beatty …:
Although admissible, in light of the general acceptance by arbitrators of the purposes of the hearsay rule, typically they refuse to base a finding of critical facts on hearsay evidence … even when hearsay evidence is admitted, arbitrators have generally been reluctant to give hearsay evidence much weight, given the inherent unfairness of not being able to test it by cross-examination … the usual approach is to hear the evidence, then disregard it if the subsequent ruling is that it ought not to be admitted.
The Hospital had failed to give a satisfactory reason for not calling another nurse who would have been available to testify. Her comments to others were found to be inadmissible because of her failure to testify.
Arbitrator Freedman stated that “evidence from nurses of what they were told by patients presents a different situation. The Hospital said that it did not call the patients who were within the jurisdiction because they were all frail and elderly. [One] was much younger but was not in Manitoba and [another] had died. The Union did not dispute these facts relating to the patients. The Hospital said that [two of the elderly patients and the deceased patient] had been described by nurses as alert and oriented and their evidence via nurses should be considered reliable. The Hospital argued that calling patients as witnesses would be tantamount to re-victimizing them.”
The arbitrator stated there are important considerations here:
Regarding the deceased patient …, the criterion of necessity is established. But what about with the others? Witnesses, even though out of Manitoba, can be subpoenaed to testify, and these patients were not subpoenaed. There could, however, be strong policy considerations for the Hospital not to call patients to testify. As to reliability, elderly persons (whatever the age parameters might be), can be alert, with good memories and be suitable witnesses. On the other hand, they (as can happen with younger persons) could be fragile on the witness stand with limited recall, and of little value as a witness. If their hearsay evidence is to be admitted and relied upon, the tests of necessity and reliability must be met. Then comes the question of weight. There is also the important consideration of the inherent unfairness to a grievor in not being able to cross-examine a person whose evidence is coming in second-hand, when his job may depend on that cross-examination. I agree with the dicta in Brown & Beatty (at para. 213 above) and even if I admitted all the hearsay evidence, I would be reluctant to give it much weight, except that I regard evidence of what [one patient] heard, as recounted by [one of the nurse witnesses] as credible for the reasons given above in para. 210
I share the view of the arbitration board in Unionville Home Society v. C.U.P.E., Local 3744,  … that “Unsworn hearsay evidence, untested by cross-examination, should not be the sole basis for a finding of such a critical fact as resident abuse.” …
In this case there is direct evidence on at least three incidents, the most important facts of which do not depend on hearsay evidence. Each of these incidents, I have concluded, has been sufficiently established by the evidence, and the facts in two of them support the decision of the Hospital to dismiss the [employee]. In my view, this renders unnecessary a detailed analysis of each item of challenged hearsay evidence which the Hospital tendered. It would not assist either party if I were to assess each of those items since the outcome of this dispute would not be affected by that analysis …
The grievance was dismissed.
The admissibility of hearsay evidence is considered in s. 11:201 of the Illness and Absenteeism manual and its’ Supplement
B. Recent Decisions of General Interest
In Tembec Enterprises Inc. Chapleau Sawmill Division, 2017 CanLII 31022 (ON LA) (Gee), the employee was assigned to monitor an area in the plant that had been subject to an electrical fire earlier that morning. There had been two flare-ups after the fire department had left the scene and before the end of the day shift. The employee on the evening shift, upon instruction from management, had warned the grieving employee, who was working the night shift, that a further flare-up was possible, and he had shown the employee exactly where to watch.
The employee, who said that she developed a headache, took some Tylenol and then lay down on a table in a somewhat darkened staff room. She fell asleep and was asleep for upwards of an hour. The employee was suspended pending an investigation for sleeping on the job. She was then terminated on the basis that she had lost the employer’s trust.
Both counsel agreed that the appropriate disciplinary response to an employee sleeping on the job depends on the facts of the case, including the context and the circumstances. Arbitrator Gee summarized the factors that had been considered in the cases submitted by both counsel. They included the following:
The employee had been employed for six months. She had no prior discipline.
The arbitrator upheld the termination. In doing so, she stated that she was not satisfied that the employee’s interest in her job outweighed the risk to the employer’s plant and staff that would be present if she was returned to work.
The imposition of discipline for employees who were discovered “sleeping on the job” is considered in s 17:201 of the Illness and Absenteeism manual and its supplement.
In Sault Area Hospital, 2017 CanLII 32201 (ON LA) (Chauvin), the employee was terminated after having failed to provide documentation to support her continued absence. The employer relied on the deemed termination provisions in the collective agreement. They provided as follows:
13:04 An employee shall lose all seniority and shall be deemed terminated if:
(c) [the] employee is absent from scheduled work for a period of three (3) or more consecutive working days without notifying the Hospital of such absence and providing a reason satisfactory to the Hospital;
(d) the employee fails to return to work upon the expiration of a leave of absence or utilizes a leave of absence for a purpose other than that for which it was granted.
The union contended that the case should be treated as a termination for cause and that the normal rules for a termination for cause should apply, with the Hospital having to both bear the onus of proof and having to proceed first. The arbitrator rejected the union’s position, stating that the case was a deemed termination case, not a just cause case, and that the onus was on the union. The union was to proceed first, and having proceeded first, it would have the final right of reply.
The enforceability of deemed termination provisions is considered in s. 16:300 of the Illness and Absenteeism manual and its supplement.
3. A complaint of harassment must be established on an objective basis, in that the alleged harasser must have or ought to have known that the course of comment or conduct was vexatious and would be unwelcome.
In Metro Ontario Inc., 2017 CanLII 30380 (ON LA) (Chauvin), the arbitrator dismissed an employee’s complaint of harassment. In doing so, he relied on the following passage from Motor Coils Manufacturing,  O.L.A.A. No. 263 (Manwaring), where the arbitrator had stated:
The objective approach also means that the opinion of the employee alleging harassment that the course of conduct was belittling, patronizing or condescending does not establish that there was harassment. Harassment is not proven simply because an employee takes offence at something that was said or done. There must be evidence that, from an objective standpoint, the alleged harasser knew or ought to have known that the course of comment or conduct was vexatious and would be unwelcome.
… The challenge in harassment cases is to distinguish between, on the one hand, the normal abrasiveness of daily life in the workplace including personal animosity and personality conflicts and, on the other hand, harassment … In British Columbia v. B.C.G.U. (citation not given), arbitrator Laing said at para. 248
There is one more dimension that should be addressed … harassment is a serious subject and allegations of such an offence must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. The first responsibility of people in the workplace is to work out their own differences for themselves, if they can. If they cannot, and the threshold test of serious actions with significant consequences is met, this process can and should be invoked where harassment is legitimately believed to have occurred. Otherwise, the process could itself be used as a means of obtaining vengeance against petty irritants or trivial concerns.
In my opinion, these cases establish that the harassment process should not be used to deal with personality conflicts, personal animosity or dissatisfaction with an individual’s management style. A supervisor may be incompetent, irritating, annoying or frustrating. He or she may be abrasive or overly assertive. His or her management style may drive employees nuts but the fact that employees do not like the management style of a supervisor does not mean that his or her conduct amounts to harassment.
The issue of harassment and the damages recoverable in cases of harassment are considered in s. 14:700 of the Illness and Absenteeism manual and its supplement.
In York University, 2017 CanLII 39857 (ON LA) (Gedalof), the employee, a university professor, was terminated after having submitted over 100 fraudulent benefit claims, most of which were for physiotherapy and massage therapy. Approximately $6,000 in fraudulent claims were paid out before the university’s benefits administrator discovered the employee’s wrongdoing. The employee subsequently took full responsibility for her actions, which she attributed to anxiety and panic attacks arising from her personal circumstances. The union conceded that the employee did not have a claim under the Code.
Both parties filed medical reports from separate psychiatrists, and agreed that the arbitrator could rely on the reports without calling the psychiatrists to testify.
The question for the arbitrator was the appropriateness of the penalty. He relied on the analysis and factors set forth by arbitrator Arthurs in Canadian Broadcasting Corp., 1979 CarswellNat 1023, 23 L.A.C. (2d) 227, stating that the decision provided a useful framework for assessing the appropriate penalty in breach of trust cases such as this. He concluded that while the employee had an excellent record and that the cost to her of discharge was undoubtedly heavy, there was an ongoing concern with respect to her reliability as an employee in a highly trust-dependent position. The termination was upheld.
The issue of fraudulent benefit claims is addressed in sections 2:400 and 17:201 of the Illness and Absenteeism manual and its supplement.
In Seaspan Victoria Shipyards Co. Ltd., 2017 CanLII 46451 (BC LA) (Hall), the employee was suspended for 10 days for allegedly sleeping on the job rather than performing tiling work on a submarine in the Victoria Shipyards.
The initial question was whether the employee was sleeping on the job. A number of observations were tendered in evidence. The employee claimed that he was merely taking a “microbreak.” At the relevant time, a supervisor was demonstrating the proper application of a tiling product. The employee was involved at the start of the demonstration but became inattentive during the latter part of the session. The arbitrator stated that “the evidence as a whole persuades me that he moved away from the others and sat down on [a] two-step stool. He was undoubtedly tired from the “strenuous” nature of the work performed over the preceding several hours … [He] closed his eyes, adopted a comfortable position on the stool and effectively took a personal break for the remainder of the demonstration.”
The arbitrator imposed a one day suspension in place of the ten day suspension that had originally been imposed. In arriving at that determination, the arbitrator stated that he had taken into account a recent ten day suspension that had been served for an unrelated matter and the relatively momentary nature of the incident.
The imposition of discipline for employees who were discovered “sleeping on the job” is considered in s 17:201 of the Illness and Absenteeism manual and its supplement.
6. Reinstatement was denied to a 71 year old educational assistant who had been improperly terminated for having abandoned his position. He was awarded damages calculated on the basis of 1.25 months wages for each of his 13 years of service plus a 15% top up to compensate for lost benefits.
In Louis Riel School Division, 2017 CanLII 26152 (MB LA) (Gibson), the employer terminated an educational assistant for abandonment of his position. The employee, who was 71 years of age, had been employed by the Division for almost 13 years.
At the beginning of the school year, the employee was advised that he would be assigned to work with a Grade 7 student with multiple disabilities. After having worked with the student for two days, the employee went on a medical leave. He testified that part of the reason for his initial medical leave was anxiety and concern over being able to safely work with the student.
During the weeks that followed, the Division met with the union, and at times, the employee, in an effort to identify an alternate assignment. One was identified at a different school and the employee was provided with a letter setting forth the alternate assignment and the date on which he was to report. He did not report and did not advise the Division that he would not be reporting. The Division arranged to meet with the employee but he advised the union that he was ill and could not attend. At that meeting, the union informed the Division that the employee did not want to move to another school but instead wanted to return to his home school (“the originating school”). The following day, the union emailed the employer to ask if the alternate assignment at the second school was still available. The employer advised that it was, subject to the employee first meeting with the Division to discuss expectations and a transition plan for his return.
Neither the employee nor the union contacted the Division until three weeks later, at which time the union sent an email to suggest several other assignments that the employee felt would be suitable. Further communication between the parties was sporadic, with the employee’s position on placement best described as “shifting”.
At the end of January, the employee received a form letter that was sent to employees who were on a leave of absence. The letter requested that employees who were on an unpaid leave of absence were to complete an enclosed form that sought their input into the staff planning process for the following year. Within a week, the Division wrote to the employee and the union to schedule a meeting to discuss the employee’s return to work that had now been scheduled for February 12. The union representatives attended the meeting but the employee did not. The Assistant Superintendent testified that she made it clear at the February 12 meeting that the employee’s absence from work since October 27 of that school year was not approved or sanctioned by the Division, and that in the Division’s view, the employee was refusing to report to his assignment. The union advised that the employee did not feel that the alternate position was suitable and that he would only return to his originating school or another position that he chose to apply for. No evidence was heard as to whether the union had relayed the Division’s position to the employee
There was no further communication between the Division and the employee or the union until one month later, at which time the Division advised the employee by letter (on March 12) that his employment was being terminated because of job abandonment.
In argument, the Division summarized the situation as one where the employee did not like his assignment for the school year and tried multiple ways to avoid that assignment. The arbitrator agreed, stating that the characterization was true both with respect to the originating school assignment and the assignment that had been identified at the second school. She commented that it was the employee’s actions that had led to him being absent without leave.
However, the arbitrator accepted the union’s argument that the employee may have been somewhat confused as to his status because the Division’s form letter at the end of January left the impression that the employee was on an unpaid leave, and subject to his plans, might be returning at the start of the following school year. In allowing the grievance, the arbitrator stated:
In these unusual circumstances, I agree [with the union] that in order to crystalize the Division’s ability to terminate for job abandonment, a final clear direction to report going directly to [the employee] from the Division was necessary. As that did not occur, I am unable to uphold the termination and accordingly, the grievance is allowed.
No financial remedy was awarded for the period when the employee had been off work, for it was the employee’s refusal to report for work that was the cause of his financial losses.
The Division contended that even if the grievance was successful, reinstatement was not appropriate. It relied on Dehavilland Inc., (1999), 83 L.A.C. (4th) 157, where the arbitrator distilled a list of factors that are relevant to a decision to award compensation in lieu of reinstatement:
The arbitrator concurred that reinstatement was not feasible:
There is no doubt in my mind from the undisputed evidence of the contact between the [employee] and the Division – which runs the gamut from his refusal to provide timely medical notes despite having those notes and living in direct proximity to the Divisional office to his perseveration on the unsuitability of [the student in question] – that the relationship is not capable of being repaired. It is not acceptable for an individual to try to force an employer to change an assignment by refusing to report to work, nor is the level of insubordination and disrespect exhibited by the [employee] in his dealings with the Division something which can be condoned.
That being said, once the evidence relating to the [employee’s] conduct towards his employer has been considered in declining reinstatement, the nature of that conduct is not relevant to an award of damages. I agree with the Union, and with the bulk of the relevant authorities that the damages awarded should be a reflection, as much as is possible, of the value of the loss of the benefit of being protected by a collective agreement.
The employee had 13 years of service. The awards that were tendered ranged “from a low of one month per year of service to upwards of 1.75 months per year of service. Arbitrator Gibson awarded 1.25 months per year of service. She stated that the employee’s age - “he is in his early seventies – suggests that he will have difficulty replacing employment, which is a factor to be considered in this exercise.”
Arbitrator Gibson declined to consider the employee’s failure to mitigate, for “if the purpose of a damage award in these circumstances is to compensate for the loss of the protection afforded by the collective agreement, mitigation is not applicable in the same way it would be in a wage loss claim.”
The cases that were submitted, with one exception, awarded a percentage top up for loss of benefit coverage in the range of 13 to 15 percent. Arbitrator Gibson awarded 15 % top up in this case.
Interest was awarded on the amount to be paid.
The issue of abandonment is considered in s. 17:300 while the awarding of damages in lieu of reinstatement is considered in s. 14:700 of the Illness and Absenteeism manual and its supplement.