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]

A. Remembering Robin Kersey

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

1. A positive test for THC (i.e. the principal psychoactive constituent in marijuana) will not be sufficient to establish that the employee was impaired or that he had recently ingested marijuana.

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.

3. A modified work committee should develop guidelines to ensure that requests for accommodation are considered in a timely fashion.

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.

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.

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.

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.

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]

A. Featured Case: It was inappropriate for an employer to have terminated an employee who was found to have had an honest yet mistaken belief that she could not return to work because of a certified disability. The appropriate response would have been to deny the employee disability benefits for the period of time that she was off work and unable to prove that she was so ill that she could not return.

In Telus Inc., 2018 CanLII 2378 (CA LA) (Luborsky), the employee had been working at home for approximately six years under the employer’s At Home Agent Program that extended to call centre employees.

The employee was initially suspended for five days for having deliberately misappropriated company time by engaging in “call avoidance”, by delaying call pick-ups and by “que surfing”. Call avoidance was said to be the practice of a customer service agent hanging up on a call after only a few rings, with the agent then going to the bottom of the que to await the next call.

The employee was subsequently terminated, approximately one month later, for having failed to report for work due to an alleged stress-related illness that began shortly after her five day suspension. Prior to the termination, the employer had been unsuccessful in its attempts to contact the employee by telephone, by voice mail and by letter couriered to her home. The employee had not provided any documentation supporting her absence from work.

The arbitrator upheld the five day suspension. He found that although many of the employer’s allegations underlying the suspension had not been proven, the employer had been able to establish, on a balance of probabilities standard, incidents of call avoidance that were sufficient to justify discipline at the five day level of sanction. Although the employee was at that point showing the beginnings of medical or physical disability, the employee hadn’t clearly alerted the employer to such issues.

However, the arbitrator concluded that the termination was improper. He stated that on the evidence as drawn from the employee’s extensive cross-examination and the medical documentation filed by the employer, (which medical documentation had been presented to the employer before it had made its decision to terminate the employee), the [employee] was either legitimately ill or certainly believed that she was as supported by her physician’s reports and incapable of attending work, which rendered the Company’s actions in terminating her employment for alleged ‘refusal or neglect to return to work’ as unjust in all the circumstances of [the] case.”

The arbitrator noted that notwithstanding the employer’s entitlement to require the employee to consult with a third party physician appointed by the employer (as a condition of receiving short term disability benefits), the employer had never requested that the employee be examined by a physician of its choice in order to substantiate her claims of being unable to work due to reactive stress/anxiety (or “major affective disorder” as it was also described).

The Practitioner’s Assessment Form that was required to be completed to obtain short term disability benefits also authorized the employer to speak directly with the employee’s physician in order to clarify or seek additional information concerning the employee’s condition. The employer did not make any effort to speak with the employee’s physician. The arbitrator commented that the failure to do so, including the failure to explore a third party examination, would have contributed to the employer’s view “that the information provided by the employee’s physician was insufficient to support a finding of total disability.”

The employer had asserted that the employee was not a credible witness. In considering this issue, the arbitrator commented that he placed heavy reliance on contemporaneous records to arrive at his findings of fact:

… As I reviewed hundreds of pages of witness testimonies, I compared the viva voce evidence of the witness with the largely contemporaneous documents in order to reconcile their testimony with that record. And where there were [contradictions] in the testimonies of witnesses with the written records of events compiled at the time, I gave greater weight to the written record in arriving at my findings of fact …, to the extent I determined them to be most aligned with all of the surrounding circumstances on a balance of probabilities standard. This was particularly the case in my consideration of the [employee’s] testimony, which I subjected to a test of consistency with the written record presented best in harmony with the events she testified about in the process of arriving at my factual findings.

The arbitrator also commented that it is the subjective belief or mental state of the witness that should be considered in determining if the witness is lying:

In considering the complexities of credibility, it is the subjective belief or mental state of the witness as revealed by the totality of the evidence that the adjudicator must consider, and conclusions on the witness’s subjective beliefs may very well be the difference between a finding that the witness is deliberately lying about events that he or she knows not to be true, from one who has an honest but mistaken belief in a version of reality that does not correspond with the objective facts. While the adjudicator must condemn the first, he or she must understand the second.

The arbitrator stated that there was an “elemental difference in the assessment of credibility” of a witness who is found to have deliberately attempted to mislead, to one who is confused or unreliable about the facts at the time and/or as a result of a relentless interrogation during cross-examination … He stated:

In assessing credibility to the extent it may be relevant to the issues in dispute, whether any deficiencies in the [employee’s] testimony are reflective of her general lack of sincerity in the sense of a deliberate attempt to mislead, which is what the Company apparently seeks to establish in part by its production demand herein, or reveals the discordant workings of an emotionally troubled mind that becomes exacerbated by various levels of stress now arguably on full display after several days of comprehensive, exacting and at times relentless cross-examination, which may be consistent with the Union’s apparent theory of the [employee’s] case, has yet to be determined.

The five day suspension was upheld on the basis that “the measure of discipline imposed … was within an acceptable limit.”

In considering whether the employee had been disabled and unable to report to work, the arbitrator commented that the negotiated provisions of the collective agreement and related documentation made it clear that the employer’s decision regarding whether the employee was disabled was a decision for the employer to make, but such decision must be made in good faith:

[Such] decision making authority is not unrestrained…. The Company’s determination of whether the employee is entitled to STD benefits is not to be exercised at its whim or unbridled will. In order to give a provision like Appendix B any efficacy, there is a presumption that managerial discretion conferred under the collective agreement shall be exercised in good faith; that all relevant factors must be taken into account; and that no extraneous or irrelevant matters will be considered.

The arbitrator commented that an employee who seeks to use disability or STD benefits bears the initial onus:

[The employee] must show, on a balance of probabilities standard that he or she is ‘totally disabled’ with an affliction or injury that reasonably prevents the employee from attending work. The employer is not required to prove that the employee isn’t sick or sick enough not to attend work.

The arbitrator adopted the following principles that had been affirmed in the Ontario Power Generation Inc. case [unreported award dated January 9, 2015 (Ont. Arb.) (Davie)]:

First, the onus is on the [employee] to demonstrate that she has an illness preventing her from attending work. Subject to the terms of a collective agreement to the contrary … the bar for establishing such an illness is not a high one, and, at least initially, it is satisfied by a less intrusive revelation that the [employee] has an affliction preventing her from attending work that is not required to include “details of the diagnosis, a treatment plan, or prognosis other than the date that the employee will be able to return to work, with or without modifications.”

Second, a medical form of the type required by the Company [certifying that the employee is unable to work] is “prima facie proof sufficient to justify the absence.” [Where an employee has provided a consent to ask reporting physicians to clarify their opinions regarding fitness to work] or to obtain additional medical information from them, as well as the ability to require the [employee] to submit to a medical examination by a physician of the Company’s choice … the Company can’t simply turn a blind eye to that ability in rejecting out-of-hand the certified medical opinions of both of the employee’s physicians that the [employee] was totally disabled and temporarily unable to attend work.

Third, where a dispute arises between the parties on whether the medical evidence supports the [employee’s] inability to attend work, [an arbitrator must make his or her] “own assessment of the medical information having regard to the context and all of the relevant circumstances under which the medical information was obtained and provided …

Fourth, even where there is evidence … that a workplace conflict “is part and parcel of the reason why [the employee] was absent from work on the days for which sick benefits are claimed,” that alone is not sufficient to detract from the probative value of the medical certification … The fact that workplace issues and potential discipline caused or contributed to the [employee’s diagnosis and inability to work] does not mean that the reported illness and the symptoms are not bona fide or incapacitating …

The arbitrator stated that TELUS Health and the employer’s management “discounted if not completely ignored the medical evidence because of the circumstances leading to the [employee’s] medical claim, and thus wouldn’t consider the possibility that the [employee] might have an illness arising out of those circumstances.” [An arbitrator] can’t simply ignore or discount that medical evidence”. He concluded that the medical evidence established that the general conduct of the employer toward the employee at a vulnerable time “was the substantial if not proximate cause of the [employee’s] extreme mental pain and suffering as certified by her physicians” …

The arbitrator stated that “holding the role of “gatekeepers” to the STD plan, [the employer and TELUS Health] enjoy a particular trust with employees as well … Part of that trust in properly administering the short term disability plan for the benefit of ill and injured employees is the obligation to ensure that before summarily rejecting an employee’s claim because of their view that it does not objectively support a medical condition that is responsible for the employee’s absenteeism, is to make reasonable inquiries of the employee’s physician that may extend to requiring another medical of the employee in appropriate circumstances. To do otherwise without compelling reasons established by the evidence would, in my opinion, be contrary to the expectation that they would exercise due diligence in the assessment of every claim …”

The arbitrator commented that such expectation was reasonable, particularly where an employer uses a pre-printed form for the doctor to complete, for in such cases, there may be “a great deal of potential miscommunication between the health professional and the benefit provider on what, exactly, the benefit provider is looking for in order to substantiate a claim.”

The employee was found to have been terminated while suffering from a recognizable diagnosis of “major affective disorder” for which she was receiving medication and counselling; she was “unfit for work”. The arbitrator stated that:

Any termination of the [employee] under such circumstances under the guise of culpable misconduct is wrongful, a violation of the just cause prescription in the parties’ collective agreement and likely a breach of governing human rights legislation, as well.

The arbitrator specifically considered the following question:

[Was] termination, or any other disciplinary response, … appropriate for an employee who was found to have the honest yet mistaken belief that she or he has a medical disability justifying the employee’s absenteeism and that returning to work will actually cause the employee harm. What if the employee has the subjective belief that he or she cannot attend at work because of a disability certified by a physician that is objectively wrong? Instead of terminating the employee when he or she is wrong, isn’t the appropriate result to deny the employee disability benefits for the period of time the employee is off work and unable to prove that he or she is ill, or so ill that he or she cannot attend work?

In addressing that question, the arbitrator distinguished this case from others where arbitrators had found that the employee’s circumstance did not establish that the employee had an honest belief on reasonable grounds that he could not return to work to perform the duties offered by the employer:

Here, the factual circumstances [were] very different. … The [employee] “had a reasonable, continuing belief that she could not return to the workplace, consistent with the totality of her [recent behaviour] … and as supported by the medical advice of her physicians, justifying her refusal to report for work as demanded by [her supervisor]. It would only be after some form of credible independent assessment of [her] medical condition supporting the viewpoint of TELUS Health on the matter, that the [employee’s] continuing refusal to report for work might pass the line of reasonableness, thereby undermining the honesty of her belief and entitling the Company to take disciplinary action if she didn’t return to work afterwards.”

The employer failed to demand an independent assessment and instead acted arbitrarily in terminating the employee “on its narrow view that this was really a workplace dispute that should be resolved in the workplace …”

The employee was reinstated, with compensation to make her whole for all losses suffered to the date of her reinstatement.

Decisions regarding the termination of employees who contend that they are unable to return to work because of continuing illness are considered in Chapter 6 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.

In Winnipeg (City), 2018 CanLII 58462 (MB LA) (Robinson), the employee had been employed as a firefighter and paramedic. After he and his wife separated, his wife obtained a “no-contact” order from the Court. The employee was subsequently arrested for having disobeyed that order. Those and other charges led to his ongoing incarceration.

The employee remained in custody for a number of weeks following his arrest. He subsequently returned to work but was arrested and incarcerated for related offences some seven weeks later. The employer then placed the employee on a leave of absence “due to the exhaustion of his annual leave credits and the inability to use sick leave for his absence due to incarceration.”

Several months later, the employer requested that the employee provide written verification of the status of the ongoing court proceedings and his expected date of return to work. He was advised that the Department was not prepared to grant an indefinite leave and that it required the additional information that it had been requesting by a specified date.

The employer was advised that it was impossible to know when the employee could return to work, for he would not be released from jail until after the verdicts had been handed down on the pending charges. The employer was not satisfied, and it scheduled a disciplinary hearing to deal with the issue. Management recommended that the employee’s employment be terminated. At that time, management speculated that the matter would not likely be resolved for a further 10 months.

The Deputy Chief upheld the recommendation to terminate on the basis that the employee had now been absent for one year with no anticipated date of return.

The collective agreement did not contain a general leave of absence provision. It did however make reference to other leaves, and the employer acknowledged that it had the power to, and had in fact granted administrative leaves for fairly lengthy periods of time. The employer also acknowledged that in considering such leaves, the employer would be required to act fairly, reasonably and in good faith.

Arbitrator Robinson stated:

The weight of arbitral authority supports the position that in exercising the discretion to grant or deny an employee’s request for a leave of absence, an employer must act reasonably and consider all of the relevant factors and circumstances. This requirement is also applicable to an employee who requests a leave of absence to cover a period of incarceration.

The arbitrator further stated that a comprehensive summary of the state of the reasonableness standard in that context can be found in Brown & Beatty at paragraph 7:3120.

Arbitrator Robinson referenced the decision of arbitrator Shime in Alcan Canada Products, [1974] O.L.L.A. No. 18 as being the seminal case on the issue. There, arbitrator Shime commented on the necessity of balancing the interests of the employer and the employee:

It is clear that the employer has an interest in not having production disrupted and in not being unduly inconvenienced due to absenteeism for a jail sentence. While it is understandable that an employee may be excused for absenteeism resulting from illness, the same tolerance may not be forthcoming when an employee is absent because he is serving a jail term. However, the employee has also an interest that is deserving of protection. An employee’s service with the Company and a good work record should be entitled to some protection with the result that in each case there must be a balancing of interests in order to determine whether the discharge is for just cause. There is no reason for a Board of Arbitration to consider absence per se as a basis for discharge. In this type of situation, the employer’s interest in having production free from disruption must be balanced against the employee’s work record, the nature of the offence and the duration of the jail sentence.

Arbitrator Shime concluded that there was no basis for the termination, for there was “no evidence whatsoever before the Board by the Company official who decided to terminate [the employee] that the production needs of the Company were considered and that the [employee’s] absence caused a disruption in production.”

In upholding the employee’s grievance, arbitrator Robinson stated:

… The evidence [did not establish] that the Employer, in exercising the discretion to deny the requested leave and terminating the [employee’s] employment, considered whether the [employee’s] absence would cause a disruption in operations or if it would otherwise affect the Employer’s capacity to provide fire protection to the public. The decision-makers for the Employer did not testify at the hearing and their written decisions do not indicate that they considered the appropriate factors or that they balanced the Employer’s interest in having its operations free from disruption against the [employee’s] legitimate interest in maintaining employment.”

The arbitrator also noted that the employer had testified that overtime had been used approximately 150 times during the employee’s authorized absence from work. He rejected overtime as a consideration, for as the employer acknowledged, overtime usage may result from any number of factors. Moreover, there was no evidence that overtime costs or any other financial implications were considered in denying the leave.

Decisions regarding leaves of absence are considered the search for accommodation are considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.

In Atlantic Packaging Products Ltd., 2018 CanLII 10474 (ON LA) (Trachuk), the employee had received a five day suspension for taking extended lunch breaks. A second five day suspension was then imposed 10 ½ months later when the employee violated a provision that prohibited the posting of unauthorized notices on the employer’s bulletin boards. Finally, the employee was terminated approximately four months later due to alleged insubordination. All three grievances were heard together. The employer relied on progressive discipline (and a culminating incident) to terminate the employee. All three disciplinary events were grieved.

Although the collective agreement allowed two ten minute rest periods per shift, the evidence established that employees could combine these two rest periods into one lunch break, with the combined break often exceeding 20 minutes. The accepted rationale for not strictly enforcing the 20 minute lunch break was that employees were allowed a few minutes travel time on each side of the break. Employees were also permitted to take other breaks when their machines were running. These included “smoke” breaks, washroom breaks and breaks to travel and purchase a drink from the lunch room. These breaks were not considered part of the 20 minutes allocated under the collective agreement.

The initial five day suspension was set aside. The employee had not been informed of any of the dates and times that he was alleged to have taken an extended break, nor was he asked for any explanations. There was no evidence establishing “that the employees were told how much time they could take and what would be considered too much”:

In those circumstances, if the employer decided that employee lunches were too long, it was incumbent on it to advise employees either that it was going to strictly enforce the breaks in the collective agreement or some other expectation. It would only be appropriate to impose discipline after employees were put on notice of the employer’s new expectations and given the opportunity to meet them.

The arbitrator also stated that the employer had failed to provide the employee with a meaningful opportunity to challenge or answer its allegations:

[The employee] was not provided with the dates and times he was alleged to have taken extended lunch or extra breaks until shortly before the arbitration. By that point, he could not be expected to remember what he was doing on those occasions. The employer could have easily avoided that unfairness by having a real investigation meeting, providing the [employee] with its evidence, and asking him why he was late returning from lunch or why he was in the lunchroom in the afternoon. The managers could also simply have asked him why he was in the lunch room when they saw him there. Saying nothing merely provided support for his understanding that he was allowed to take a break.

The arbitrator concluded that the employer had not demonstrated just cause to discipline the employee because:

It did not warn him that its rules about lunches and breaks, whatever they were, were going to be strictly enforced and because it did not provide him with a real opportunity to provide an explanation.

The first grievance was allowed.

The arbitrator found that the facts underlying the second five day suspension had been established. However, with the first suspension having been set aside, the employer could not rely on the concept of progressive discipline to justify the second five day penalty. The arbitrator substituted a one day suspension as being appropriate in the circumstances.

While the employee was found to have been insubordinate, the termination was set aside, for:

The employer had based its decision to terminate the [employee] on progressive discipline and a culminating incident. However for the reasons cited [in the award], the only discipline left [on the record at that point] was the one day suspension [that had been substituted].

The arbitrator then imposed a five day suspension in lieu of the termination. The employee was to be reinstated and was to be reimbursed for all lost pay beyond the total of the six days that he was ultimately suspended.

In Greater Essex County School Board, 2018 CanLII 125958 (ON LA) (White), the employee grieved that the employer had failed to pay the employee sick leave payments that were due pursuant to the provisions of the collective agreement.

The employer sought production of “any and all medical documents of any kind pertaining to the [employee during a specified time period] and for any further time periods in respect of which damages may be claimed.” The Union argued that the medical documents were not arguably relevant to the matters in issue. The arbitrator disagreed, stating that once the employee’s entitlement to benefits, including matters related to accommodation, had been put in issue, the Employer was entitled to seek production of documents “that are arguably relevant to their determination.”

The arbitrator also rejected the employee’s assertion that it was incumbent on the employer to identify the deficiencies in the medical certificates already provided by the employee in order for it to be able to advance its demand for production of the documents.

The arbitrator stated:

Medical documents that are not arguably relevant to the matters in dispute should not be the subject of a production order. [Therefore], ordering production of an [employee’s] entire medical file is inappropriate. Accordingly, production [in this case] should be for any and all medical documents that are arguably relevant in these proceedings, and for greater certainty, this shall be deemed to include documentation pertaining to the [employee’s] initial and ongoing absence from the workplace together with any restrictions or limitations he may have.

Arbitrator White commented that discretion exists for an arbitrator to implement a process by which he reviews documents for relevance. He stated that in the case of sensitive medical information, the following factors bear consideration:

1. What is the nature of the medical information sought? While all medical information is, by definition, private and personal, it seems to me that certain classes of such information can be said to create inherently greater concerns. Information related to a physical or mental condition that creates, however wrongly, a social stigma creates a greater privacy interest than a medical issue that carries no such stigma.
2. Is the medical condition at issue the product of, or related to, the workplace in any way? To the extent that it is alleged that an employee’s medical condition relates to, or is rooted in, the workplace, the employee’s privacy interest may be heightened.
3. Does disclosure of the medical information create the potential for future impacts on the employment relationship? Such impacts may include the manner in which the employer and the employee interact in the future or on the employee’s relationships with co-workers and third parties dealt with in the course of employment.
4. To what extent, and for what purpose, is the medical information to be shared by the party to whom disclosure is made? As the circle of potential recipients is broadened, the impact on the employee’s privacy is increased. Potential recipients include counsel or representatives conducting the arbitration, expert witnesses, non-expert witnesses and organizational representatives. With respect to the latter category, the potential impact created by disclosure to an organizational representative may vary depending on the size of the organization and the role played by the representative within that organization. For example, disclosure of medical information to an employee’s direct supervisor is likely to create a different privacy impact than disclosure to a professional in the health and wellness department of a large, multi-site organization.
5. What safeguards can be implemented to ensure that the disclosed information will be used only for the limited purpose for which it has been produced?
6. What mechanism will best accomplish the goal of establishing [an] expedient, efficient and effective disclosure process? To enhance good workplace relationships, the parties involved in a labour arbitration, together with grievors, need to have confidence that the process put in place fairly balances their competing interests in a manner that does not unduly complicate or delay the proceedings.

The arbitrator commented that in the normal course of proceedings, the assessment of what documents may be arguably relevant is, in the first instance, carried out by the counsel or representative of the party providing production to the other side. After considering the foregoing factors, arbitrator White concluded that there was no basis to vary the normal process of production that would take place if he was not involved.

The arbitrator therefore issued an order for production of medical records. Included were provisions dealing with safeguards limiting the use of such information, including non-disclosure, return of the documents at the termination of the proceedings, and issues relating to redaction of material that was not arguably relevant.

Decisions regarding production of an employee’s medical documentation are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.