llness and Absenteeism.com - March 2020 Newsletter
In this edition you find:
A. Remembering Robin Kersey [Click here]
B Featured Case: Deemed termination provisions should not be used for resolving disputes concerning an employee’s capacity to work at her regular job, particularly where the employer has full knowledge of the reason for the employee’s absence. [Click here]
C. Recent Decisions of General Interest
1. A positive test for THC (i.e. the principal psychoactive constituent of marijuana) will not be sufficient to establish that the employee was impaired or that he had recently ingested marijuana. [Click here]
2. The permanent demotion of a Head Caretaker to a shift leader because of the need for permanent accommodation did not constitute a breach of the employer’s procedural or substantive duty to accommodate. [Click here]
3. A modified work committee should develop guidelines to ensure that requests for accommodation are considered in a timely fashion. [Click here]
4. The mere fact that a person’s conduct causes another to experience stress and anxiety is not sufficient to conclude that the conduct constitutes discrimination on the basis of disability. [Click here]
5. A “last chance” agreement was upheld where the post discharge evidence fell short of establishing that the employee had a favourable prognosis for recovery. [Click here]
It is with great sadness that we inform you that Robin Kersey died early on the morning of February 27, 2020, at the age of 63.
Many of you will have known Robin from his national reputation and practice in the area of employment law, while others of you will have worked directly with him on committee or client-related issues.
Robin was a valued and beloved partner in the Winnipeg law firm of Thompson Dorfman Sweatman LLP. He was continually recognized by Lexpert as a Leading Lawyer in both Employment and Labour Law, and was repeatedly selected for inclusion in “Best Lawyers in Canada” in the Labour and Employment areas. In 2012, that publication selected Robin as the Best Labour Lawyer in Winnipeg, and in 2017, it recognized him as the Winnipeg Lawyer of the Year for Alternative Dispute Resolution.
Robin was as loved outside the firm as he was in it. He made lasting friendships across the country with lawyers that he met over the years and they looked forward to connecting with him every year at the national conferences that they would attend.
Robin leaves behind his wife, Linda, his two adult children, Sean and Kristin, and his two youngest children, Amy, age 13 and Anna, age 11. He will be sadly missed by his family, friends, and the legal community as a whole.
Robin was one of the good ones. His complete obituary can be found at www.dignitymemorial.com.
B. Featured Case: Deemed termination provisions should not be used for resolving disputes concerning an employee’s capacity to work at her regular job, particularly where the employer has full knowledge of the reason for the employee’s absence.
In Corporation of the Town of Ajax, 2018 CanLII 124173 (ON LA) (Mitchnick), the employee had been terminated on the ground of job abandonment. The employer had relied on a collective agreement provision which stated that an employee would lose her “seniority rating” if she had been absent for three consecutive working days without being granted a leave of absence “unless a reasonable reason [was] given.”
The employee, who was employed as an Accounts Payable Clerk, had been provided with a Letter of Warning regarding several perceived inadequacies in her work performance. Shortly thereafter, she began to experience panic attacks and reported having trouble sleeping and breathing. She testiﬁed that within one month, she began to feel drained “beyond fatigue”; hopeless; and the tightness in her chest had turned to pain. At times she found her work exhausting and she was overcome with anxiety. She began to experience nightmares.
The employee left work approximately three months after issuance of the letter. On her last day at work, she cleaned out her desk and left with all of her personal effects. That day, she sent a medical note to the Town’s Human Resources Department. It advised that she was incapable of carrying on at work and was receiving treatment for stress, anxiety and depression.
The Town’s Manager of Human Resources assessed the problem as being attributable to the relationship between the employee and her manager. The initial medical certiﬁcate that was provided by the employee’s doctor stated that the employee was unable to return to any form of modiﬁed duties because of an “adjustment problem due to work situation environment.” It advised that the employee’s condition was such that she was having attention and concentration difﬁculties.
The Town informed its disability insurer that it had “not received objective medical evidence to support [the employee] being away from work and being unable to fulﬁll her regular job duties.” The Town later explained that the medical information was lacking because “it was based entirely on self-reporting, untested by any diagnostic tool, with no reasoning behind it, other than the reference to “work situation”.
The Town wrote to the employee’s doctor to seek objective medical evidence conﬁrming that the employee would be unable to take part in any form of work. The doctor’s response was sent directly to the beneﬁt insurer. Within a few weeks, the Town wrote to the employee and advised her that because the Town “had not received any objective evidence to support her absence from work” she was now considered to be on an unapproved leave. She was told that if she did not return within one week from the date of the letter, or in the alternative, provide additional information to support her absence, the Town would assume that she had abandoned her position.
The employee’s treating psychiatrist subsequently wrote to the employee’s doctor to advise that the employee was not prepared to continue with their professional relationship. He stated that although he had been unable to complete his assessment, he did not believe that the employee suffered from clinical depression. He also stated that he was unable to determine if the employee suffered true panic attacks, and he was unable to say if the employee would beneﬁt from any psychoactive medication.
Shortly thereafter, the employee’s doctor advised that “the employee was incapable of returning to her current job due to the job responsibility and contact with the manager which may worsen her present condition. A change of work environment with another department or manager may help with the progress of her current condition.”
Again, the Town wrote to the employee to advise that it still had not yet received any objective medical evidence justifying her inability to return to work, even on a modiﬁed basis. It advised that nevertheless, the Town would, on a without prejudice basis, permit the employee to return on a modified basis, and that should she not do so, she would be considered to have abandoned her job and her employment with the Town would cease. The employee responded by asserting that she was not abandoning her job and that she would not return until permitted to do so by her doctor.
The Town then wrote to the Clinical Psychologist who had assumed the employee’s treatment. Enclosed with the letter were a detailed Background History and a series of detailed questions for the psychologist to answer. He advised the employee, and her lawyer, that he could not provide a complete answer without spending more time assessing her condition. The battery of tests he would employ and his complete report would warrant a fee typically in the range of $2,000 to $3,000. The $75 that the Town had offered to pay for his Report was insufﬁcient. That information was never communicated to the Town.
At the hearing, the psychologist testiﬁed that he considered “adjustment disorder” to be the most likely diagnosis for the employee, and that when he last saw her, she was not ﬁt to return to work, even on a modiﬁed basis.
As it threatened to do, the Town provided the employee with a letter advising that she was now deemed to have abandoned her job and that her employment was being severed immediately.
The employee ﬁled an application for LTD beneﬁts. The insurer referred the employee to a psychiatrist that it had engaged to evaluate her. He advised the insurer that from a psychiatric perspective, the information that he received was sufﬁcient to conﬁrm the “adjustment disorder” diagnosis. The claim was however denied, with the arbitrator stating that the employee’s acknowledgement to the insurer that she would return to work if she was provided with another job and a different manager obviously did not help her claim.
The employee appealed, and in furtherance of that appeal, submitted a report from her psychologist. He provided his preliminary diagnostic impressions based on the DSM V criteria. He opined that the employee was suffering from a “substantial psychological impairment that was preventing her from initiating any gradual return to work program or labour market re-entry.”
A further report was obtained from the employee’s family doctor. She advised that the employee “continued to have signiﬁcant psychiatric impairment and cannot work at the same job with the same manager. Her symptoms are more severe than would be expected of an average person. Her symptoms of adjustment disorder are lasting longer than an average person because the stressors are not truly removed.” The doctor’s report recommended that the employee be accommodated and that she return to a different work environment with a different manager. She recommended that the accommodation be of a permanent nature because of the chronicity of the employee’s symptoms. In doing so, she acknowledged that together with her own observations and the assessment of the employee in her ofﬁce, she had to rely on what the employee was telling her. She stated that this was always the case when dealing with mental conditions. She also testiﬁed that her recommendation that the employee return to a different department and manager was simply a suggestion, for she recognized that any sort of reassignment was strictly within the purview of the employer.
In reviewing the authorities that had been submitted by the parties, arbitrator Mitchnick cited Expertech Network Installation, 2017 CanLII 43166 (Ontario) (Stout), where arbitrator Stout specifically commented on the issue of objective medical evidence:
In terms of the necessary evidence to support a ﬁnding of being totally disabled, 1 have some difﬁculty with the Company’s position that there must be sufﬁcient objective medical evidence. First of all, the IPP [Income Protection Program] does not mention a requirement of “sufﬁcient objective medical evidence”. Secondly, mental disabilities by their very nature are not always readily apparent and often involve subjective reporting of how one is feeling. It is very difﬁcult and in my view overly onerous to require an employee with a mental disability to provide a great deal of “objective medical evidence”. Rather, l believe a nuanced approach is more appropriate examining all the evidence to determine if the employee is absent due to a disability which renders them unable to perform their usual or light duties. In this regard, the evidence of symptoms and their effects on the employee are relevant, despite the fact that they may be in some cases self-reported and somewhat subjective. If the evidence of symptoms and their effect supports a ﬁnding that the employee was unable to perform their usual work or light duties, then entitlement must be supported.
Arbitrator Mitchnick also referenced Sunnybrook Health Sciences Centre, 2012 CarswellOnt 7949 (Jesin), where arbitrator Jesin considered the phrase “without providing a reason satisfactory to the employer” that is often found in many deemed termination clauses. Arbitrator Jesin stated that under such clauses, the employer’s decisions are reviewable. While an employer may still challenge the assessment and prescription of the doctor by, for instance, seeking further information or by way of an independent medical review, and while there are occasions when an employer is rightly circumspect of the medical information provided by an employee’s doctor, that does not mean that the Employer can reject out of hand the medical recommendation of the employee’s doctor without any contrary medical evidence of its own, as a reason for the employee’s absence.
Arbitrator Jesin also stated that in his view, deemed termination provisions were not appropriate for resolving disputes concerning an employee’s capacity to work at her regular job, particularly where the employer has full knowledge of the reason for the employee’s absence.
Arbitrator Mitchnick commented that the Town of Ajax case dealt with a loss of seniority rather than a loss of employment, and that such distinction caused the Town to argue that in the alternative, the termination should be upheld on the grounds of a discharge for cause. He stated that this characterization did not change the factual issue in a signiﬁcant way. In reinstating the employee, the arbitrator commented that the employee’s physician was measured and fair in her testimony and showed no tendency to over-state matters in a way that necessarily was favourable to the employee. She had also dealt with the employee over multiple decades and was in a credible position to assess her condition. Further, her assessment of “adjustment disorder” was essentially supported by all of the specialists who were involved.
Arbitrator Mitchnick also observed that this was not an accommodation case, for the Union was not arguing that the employee could insist that she be assigned to a different manager as a matter of accommodation.
The arbitrator stated that the only issue to be decided was whether the employee had a medical justiﬁcation for refusing to report for work at the time that she refused. He found in favour of the employee. The employee was to be reinstated, but without an order of back compensation. The parties should be returned to the position that they were in at the point that the Town declared that the employee’s employment had ceased. He also stated that:
In the face of the medical evidence as the Town last saw it, the [employee], to return, needs something more than to simply say “I’m ready.” It was medical evidence that substantiated her absence, and she requires medical evidence to establish her ﬁtness now to return.
Decisions regarding deemed termination clauses are considered in Chapter 16 of the Illness and Absenteeism manual and its supplement.
C. Recent Decisions of General Interest
In Bombardier Transportation (Thunder Bay Plant), 2018 CanLII 25064 (ON LA) (Craven), the employee was one of two employees who had been discharged for smoking marijuana at work, in contravention of the employer’s drug and alcohol policy. The employer, being of the view that it had reasonable grounds to require testing, ordered the employees to undergo such testing. In the case of this employee, he tested positive for THC, the principal psychoactive constituent in marijuana. The employee denied having smoked marijuana in the workplace and maintained that the positive test result was a consequence of his off-duty use of marijuana to address various health issues.
Both parties accepted that “a positive result merely indicates the presence of THC in the system without necessarily identifying either present impairment or recent consumption.”
Neither discrimination nor accommodation was an issue.
The supervisor, who had been checking on employees working outside, reportedly noticed a strong smell of marijuana, He then observed two employees standing next to another company building, approximately 150 to 200 feet away. As he walked up behind the two employees, he noticed smoke being exhaled by the other employee. He reported that after the employees noticed him, something struck the ground and then smouldered. The supervisor searched the area without result. He then walked the two employees over to the Human Resources department.
The arbitrator commented that although there were some discrepancies, “it was not inconsistent with the policy for the Company to send two employees for drug testing when they were found in proximity to one another at a site where illicit drug use had long been suspected, and where a supervisor reported having smelled marijuana and seen one of them exhale smoke.”
The arbitrator stated that the employee had placed his credibility in issue when he first claimed to have a prescription for marijuana and then came up with various excuses for not providing it, and then finally acknowledged that he did not have a prescription and that he used “street drugs” when smoking marijuana away from work. The arbitrator commented that the possession of a medical marijuana license was only relevant to the issue of the employee’s credibility. He stated that the employee’s claims during the investigation were “mendacious” (i.e. untruthful) and that his testimony at the hearing was “self-serving,” whereas the supervisor’s eyewitness account was disinterested and restrained. He concluded that the supervisor’s observations were to be preferred where they differed from those of the employee.
The arbitrator stated that while he preferred the supervisor’s observations, he did not necessarily share the conclusions that the employer drew from those observations. The supervisor’s eyewitness account did not “compel the conclusion that the [employee] was probably smoking marijuana. He was not seen smoking, exhaling or disposing of drugs or paraphernalia. [The supervisor] was unable to say that [the smell of smoke emanated specifically from the employee].”
In all the circumstances, the employer had “not demonstrated that it is more probable that [the employee] smoked marijuana on its property … than that he did not.” The employee was reinstated and made whole for all losses.
Decisions regarding the ingestion of alcohol or illegal drugs in the workplace are considered in Chapter 15 of the Illness and Absenteeism manual and its supplement.
2. The permanent demotion of a Head Caretaker to that of shift leader because of the need for permanent accommodation did not constitute a breach of the employer’s procedural or substantive duty to accommodate.
In Toronto District School Board, 2018 CanLII 67331 (ON LA) (Sheehan), the employee, who was employed as a head caretaker, injured his shoulder while shovelling snow. His restrictions were determined to be permanent in nature and he was advised that he would be unable to return to his former position as a head caretaker.
The employee was ultimately accommodated in a “shift leader” position. After a short period, he booked off sick for health reasons. His decision to do so was attributed to the combined effect of his physical and mental health issues.
It was the union’s position that the permanent demotion of the employee to a “shift leader” position “constituted a breach of the Employer’s procedural and substantive duty to accommodate.”
The arbitrator concluded that unlike an earlier case between the parties, the employer in this case sought input and feedback from the employee and the union regarding possible accommodation measures vis a vis the employee’s injury. The evidence failed to support the union’s contention that the employer had failed to satisfy its procedural duty.to accommodate. The arbitrator also found that it was reasonable for the employer to have demoted the employee, for the employee’s restrictions as they related to the head caretaker position were significant.
The grievance was dismissed.
Decisions regarding the search for accommodation are considered sections 14:601 to 14:625 of Chapter 14 of the Illness and Absenteeism manual and its supplement.
In Tenneco Canada Inc., 2018 CanLII 74238 (ON LA) (Chauvin), the arbitrator considered principles governing accommodation and modified work committee issues in the workplace. His decision arose from a mediation convened to address these issues.
In considering the matter, arbitrator Chauvin noted that workplace accommodation requests that sought to limit disabled employees to working on only the day shift were resulting in non-accommodated employees being denied the opportunity to work a proportionate number of day shifts.
The Modified Work Committee was charged with addressing accommodation requests from within the workplace. Recognizing that the number of requests can be challenging and that they cannot all be dealt with at the same time, arbitrator Chauvin suggested that the Committee prioritize which requests should be addressed at any given time or meeting, and that those requests be the focus of that meeting. The Modified Work Committee could then move on to other requests at the next meeting. The arbitrator commented that the Committee’s importance is such that only willing and competent persons should be placed on the Committee and that it is important that the size of the Committee and its potential for excessive turnover be among the factors considered. An Agenda should be set for each meeting, (perhaps with the union and the employer consulting on the matter.)
He stated that accommodation requests that could not be resolved at the Committee meeting should be placed on a “To Do” list, with the Committee working on the list before or at the next Committee meeting. Arbitrator Chauvin commented that the Committee may be able to decide, based on the information that has been provided, whether the available information is sufficient to make a decision regarding the request for accommodation. If it is, then the request for accommodation should be addressed. If not, additional medical or operational information should be sought.
Arbitrator Chauvin’s comments are understandable, but they ignore the fact that not all accommodation issues are the same. Where additional information is likely to be required, then the request for such information should be made as soon as possible so as to avoid unnecessary delays from one meeting to another. The parties must deal with accommodation issues in a timely fashion, and it would seem unlikely that an arbitrator would countenance unnecessary delays in addressing requests for accommodation simply because the Committee could only accommodate a limited number of requests at any one meeting.
A more workable approach might be to have all requests submitted to the management and union co-chairs, and that they direct a designated company official to “work-up” each request based on a list of factors that would serve as a guideline. If further medical information or information on job-related duties required additional clarification, then those matters could be addressed, either before the next meeting or by way of recommendations to be considered at that meeting. Wherever the co-chairs can agree on steps to be taken, then that decision should be taken, or at the very least, be the subject of a recommendation at the upcoming meeting.
Arbitrator Chauvin set forth several principles intended to guide the parties in addressing accommodation issues. They can be summarized as follows:
i. An employee who requests accommodation must prove that they are entitled to the requested accommodation. That requires that the employee prove that they have a disability or other human rights ground that would entitle them to be accommodated and that the requested accommodation is required to enable them to continue to work;
ii. The employer does not have to grant the specific accommodation that the employee requests. The employee is not entitled to their preferred accommodation. Rather, the Company is entitled to grant whatever accommodation is appropriate and reasonable, taking into consideration numerous factors, including the following:
1. Any accommodation must be productive, and the result of the accommodated work must have value;
2. The accommodation can be on a different shift, classification or department, other than the employee’s current or preferred shift, classification or department;
3. The Company, the Union, the Modified Work Committee and the employee all have a legal duty to act reasonably in determining whether there is reasonable and suitable accommodated work for the employee …
4. In determining whether accommodation will be provided to an employee, the Company can seek to minimize the negative effects that various accommodation options would have on other employees, and;
5. Employees are not entitled to choose or claim any possible or preferred accommodation, but rather must accept reasonable accommodation that the Company offers to the employee, even though the employee would prefer other accommodation.
6. An employer may not be able to provide accommodation to an employee where it would amount to an undue hardship for the employer to do so, due to the cost or disruption to the Company’s operation that the accommodation would cause. However, the larger the Company, the more difficult it would likely be to prove that an accommodation would amount to an undue hardship.
The foregoing arbitral principles should be viewed as a mere primer on the issue of accommodation. By way of a brief comment, Chapter 14 of the Illness and Absenteeism manual and its continually updated Supplement sets forth in excess of 100 separate principles that elaborate or expand on the foregoing. Material such as that should be consulted when dealing with what can be a very complicated area.
In Save-On-Foods, 2019 BCHRT 202 (CanLII) (Murray), the complainant alleged that the conduct of a store employee had triggered her pre-existing mental disability. The complaint was dismissed on the basis that it had no reasonable prospect of success. The Tribunal stated that the mere fact that the conduct complained of causes an individual to experience stress and anxiety does not mean that the conduct constitutes discrimination on the basis of disability:
… It is not enough that a complainant has been treated badly, which caused him or her to feel stress or anxiety or develop a mental disability. Rather, he or she must be treated badly and the mental disability must be a reason he or she was treated badly…
Secondly, there may be situations where it is discrimination if a Respondent’s conduct has a negative effect on a person’s disability. But in those cases, the Respondent must know or reasonably ought to know that the person has a disability that requires accommodation.
Neither of those circumstances was present in this case. The complaint was therefore dismissed on the basis that the conduct complained of did not constitute discrimination.
Principles related to discrimination on the basis of disability are considered in sections 14:201 to 14:207 of the Illness and Absenteeism manual and its supplement.
In Toronto District School Board, 2018 CanLII 39769 (ON LA) (Burkett), the employee was terminated pursuant to a “last chance” agreement that had extended her employment in settlement of an earlier grievance challenging the suspension of her sick leave.
The “last chance” agreement required that the employee enter into a residential alcohol treatment program. It prohibited her from consuming alcohol or drugs, whether before or after reinstatement. Her completion of the program was to be followed by her submitting a medical prognosis for continued abstinence. She was then required to enrol in an after-care program before being reinstated. During her first year following reinstatement, the employee was to submit to urine tests and/or a Breathalyzer on a random basis. The agreement provided that any breach of the “last chance” agreement by the employee would result in the employee’s discharge and that such termination would satisfy the just cause provision of the collective agreement.
The employer and the union agreed that for the purpose of the arbitration, if the employee had been disabled, she had been accommodated to the point of undue hardship; that the employee had fundamentally breached the “last chance” agreement; that absent extra-ordinary circumstances, the “last chance” agreement should be given effect; and that the post-discharge evidence did not establish any kind of a prognosis for recovery.
The “last chance” agreement had been executed by the union (and subsequently the employee) within days of the employee having entered the 20 day residential treatment program. She neither returned to work nor contacted her employer following her completion of that program.
The employee’s employment was terminated when she refused to submit to a drug and alcohol test.
Despite having received three reminders from the union, the employee failed to appear at the arbitration hearing. The hearing was rescheduled, with the employee then enrolling in a two week community withdrawal management program that commenced at the start of the re-scheduled arbitration.
The union contended that the “last chance” agreement should not be determinative. However, the arbitrator commented that prior to executing the agreement, the employee’s attendance had been far below the minimally acceptable level of attendance even though the employer had supported the employee with changes in work location, leaves of absence and sick pay through various relapses. The arbitrator was satisfied that the employee had been accommodated to the point of undue hardship; that the “last chance” agreement constituted further accommodation; and that the employer’s obligation to accommodate the employee to the point of undue hardship had been met at the time that the last chance agreement was executed. The arbitrator stated that he did not accept that the Supreme Court of Canada decision in Meiorin either negated the role that last chance agreements play nor the deference that should be given to them when their terms are reasonable having regard to the underlying circumstances.
Arbitrator Burkett commented that “last chance” agreements have an important role to play for both employers and employees, and that second-guessing such agreements would inhibit their use:
It has long been accepted that a “last chance” agreement is a useful device that allows an employer to drive home to an employee with addiction/attendance issues the seriousness of the situation without resorting to termination. It is not surprising, therefore, that absent compelling evidence of post-discharge rehabilitative potential, arbitrators have been reluctant to second guess “last chance” agreements. This is so because the effect would be to inhibit their use.
Arbitrator Burkett also cited a 1999 decision of arbitrator Knopf where she likewise commented on the purpose and utility of such agreements:
Last chance agreements are commonly used in sophisticated employment settings to bring home to an alcoholic the seriousness of continued addiction and at the same time allow the employee to obtain appropriate treatment. The intention is to preserve or reclaim a failing employer/employee relationship. One of the reasons these agreements can be effective is that experience has taught us that an alcoholic often will not seek or benefit from treatment until s/he has “hit bottom” by losing his/her job. But that situation can put them in a crisis where there are often difficulties obtaining the resources necessary for successful treatment. A last chance agreement is a much more humane and progressive opportunity that allows the alcoholic to clearly foresee the consequences of continued consumption without having to face the difficulties that come with the loss of employment benefits. That is also why a last chance agreement has been seen as a form of accommodation by arbitrators.
The arbitrator dismissed the grievance, primarily on the ground that the post-discharge evidence fell far short of establishing that the employee had a favourable prognosis for recovery as might support overriding the “last chance” agreement and thereby provide the employee with another chance.
Last chance agreements are considered in Chapter 16 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. An arbitrator reinstated a Winnipeg firefighter who had been denied a leave of absence because of his lengthy incarceration. [Click here]
2. A five day suspension for having taken extended lunch and rest breaks was overturned where the employer failed to provide a clear expectation and a meaningful opportunity for the employee to challenge the allegations. [Click here]
3. An arbitrator refused to shield an employee’s medical records from production. However, in doing so, he reviewed several considerations impacting the disclosure of particularly sensitive medical documents. [Click here]