llness and Absenteeism.com - May 2013 Newsletter

In this edition you will find...

• Featured Article -  A recent decision suggests that an employer who is prepared to accommodate an employee with a disability may be disadvantaged unless it does so on a “without prejudice” basis
• Recent Decisions of Interest

Featured Case: A recent decision suggests that an employer who is prepared to accommodate an employee with a disability may be disadvantaged unless it does so on a “without prejudice” basis: Ottawa (City), 2012 CanLII 51391 (ON LA) (Marcotte)  

At law, an employer’s obligation to establish that it took appropriate steps to accommodate a disabled employee does not arise until the employee has established a prima facie case of discrimination. To establish a prima facie case of discrimination, an employee must establish that she had or was perceived to have had a disability, that she received adverse treatment, and that her disability was a factor in that treatment.

The employee bears the onus of initially establishing those elements. Unless she does, the duty to accommodate does not arise, and the employer is not obligated to establish that it had taken such steps as were necessary, short of undue hardship, to accommodate the employee’s disability.

In this case, arbitrator Marcotte held that a letter from the employer and an Accommodation Plan crafted some seven years earlier had estopped the employer from insisting that a prima facie case of discrimination be established. The letter, from the program manager of the employer’s Health and Wellness program, merely stated that the medical information supported the existence of a disability that required accommodation. An Accommodation Plan, signed several months later, contained a similar acknowledgement.

The arbitrator stated that “had the Employer intended to reserve its right to require the Union to establish a  prima facie case of discrimination, or had intended that in accommodating the grievor its action was without prejudice to its right, it ought to have made a clear and unequivocal representation to those effects to the Union.”

The case may not stand up to a critical analysis. It does however raise a caution that many employers will want to explore, and that in turn may create an unnecessary issue between the parties. Read further to consider one suggestion for addressing the potential impact of this decision 

Recent Decisions of Interest

1. In Victoria Symphony Society, 2012 CanLII 51817 (BC LA) arbitrator Dorsey reinstated an employee who had been terminated due to a work-related auditory injury that prevented him from continuing as a musician with the Symphony. He did so on the basis that the employee’s termination was premature. In a Supplementary Award, the employee was awarded $18,000 for the premature dismissal and the lost opportunity to pursue accommodation opportunities. That award was made without regard to the fact that it was established that employee could not have been accommodated in another position with the Symphony.

In concluding that the termination was premature, the arbitrator stated that the Symphony had not considered whether the employee could have been accommodated in a non-performing position. Moreover, when the employee was terminated

The Workers Compensation Board had not determined [that] the employee had reached his maximum medical recovery. Reaching or at least approaching maximum medical recovery would be a necessary component of any dialogue among the Symphony, [the employee] and the union about his abilities and limitations and the Symphony’s responsibility in any return to work with or without any required or possible accommodation.

Two or three months after the termination (and approximately two and one half years prior to the arbitration), the Workers’ Compensation Board determined that the employee’s condition had plateaued (i.e. reached maximum medical recovery). His disability was found to be permanent, with little likelihood of improvement to the point where he could return to his pre-injury employment. The arbitrator stated that the Board’s decision was unequivocal. Consequently, the employee was to be reinstated, but not to a performing position with the Symphony. The arbitrator stated that he would retain jurisdiction to determine if accommodation could have been available and whether a monetary remedy should flow because of the dismissal. The parties were unable to resolve these issues, and the matter was the subject of a supplementary award: Victoria Symphony Society (2012), 223 L.A.C. (4th) 247 (Dorsey)

The Supplementary Award found that the employee could not be accommodated in a non-musical role with the Symphony and that the employment relationship should now be terminated. There was no basis to order payment of lost wages or benefits. Nevertheless, the arbitrator stated that the employee, by reason of the premature termination, had suffered a “loss of opportunity to explore accommodation possibilities and possibly retain continuity of service and some benefits under the Master Agreement.” Without citing any facts or law to support the determination, the employee, who had been employed for 25 years, was awarded the sum of $18,000 for “the premature dismissal and lost opportunity to explore accommodation possibilities …”

Issues regarding non-culpable termination and the awarding of damages for a lost opportunity are reviewed in the Illness and Absenteeism manual at s.14:460 (page 587) (ongoing nature of the duty to accommodate);  and in s. 14:702 (page 694) ) (damages for failure to accommodate).

2. In Loblaws Supermarkets Ltd. (2012), 223 L.A.C. (4th) 387 (Jesin), the employee was denied his request to take Sundays off for religious purposes. The employer, being skeptical of the sincerity of the employee’s request, initiated surveillance of his Sunday activities. Without discussing the arbitral law dealing with surveillance, the arbitrator dismissed the union’s claim that the surveillance amounted to a reprisal contrary to s. 8 of the Ontario Human Rights Code.

The issue of surveillance is discussed in Chapter 12 of the Illness and Absenteeism manual.

3. A disabled employee, who was advised that her disability benefits would be discontinued, elected to take early retirement in order to ensure that she had a continuing source of income. After that election, but before she began receiving retirement benefits, the employee filed grievances regarding discontinuance of her disability benefits and the employer’s alleged failure to accommodate. The arbitrator held that the employee’s retirement brought an end to the employment relationship, and that while the employee was entitled to pursue her grievances up to the effective date of her retirement, she was not entitled to relief beyond that date: Hamilton Health Sciences (2012), 223 L.A.C. (4th) 400 (Albertyn)

The issue of termination as it relates to accommodation is considered in the Illness and Absenteeism manual at s. 14:460 (page 587) (ongoing nature of the duty to accommodate).

4. An employer was prevented from relying on a “deemed quit’ provision where the employee was found to have been suffering from depression.

In Chicopee Manufacturing Ltd. (2012), 224 L.A.C. (4th) 78 (Snow), the collective agreement provided that an employee would be deemed to have quit if absent from work without permission for three consecutive days unless such absence was beyond the employee’s control. Permission could be obtained by advising the employer that the employee could not attend at work. The employee had continually obtained such permission by advising the employer over the course of a two month period, following which he ceased to do so. The arbitrator concluded that at the time of termination, the employee was suffering from a mental disability (a major depressive disorder) and a physical illness (a thyroid problem). Despite those conditions, no evidence was led to establish that the employee’s failure to seek permission was beyond his control.

The arbitrator then considered whether the “deemed quit” provision treated disabled employees differently and more harshly than those who are not disabled, and whether the grievor fell afoul of the provision because he was disabled. Despite a lack of any real evidence on these points, the arbitrator answered both of these questions in the affirmative. The employee was reinstated but without back pay. His date of return to work was dependent on when he was cleared by his physician as being medically fit to return to work.   

5. In Manitoba (2012), 224 L.A.C. (4th) 116 (Gibson), the arbitrator rejected the grievances filed by two co-workers who were heard, but not seen, engaging in oral sex in a work place washroom. She accepted that the allegation was proven, in that the grievors’ denial was not credible and they had failed to offer any alternative explanations for what their co-worker testified that she heard.   

This decision turned largely on the issue of credibility. The law regarding the proper assessment of credibility is considered in the Illness and Absenteeism manual at s. 13:500 (Page 507).