Illness and Absenteeism.com - May 2017 Newsletter
In this edition you will find:
A. Feature Case: The British Columbia Court of Appeal has affirmed that a union does not have an automatic right to be consulted in all cases involving medical accommodation. [Click here]
B. Recent Decisions of General Interest
An employee was ordered to produce a copy of his recent medical file to assist the employer's legal counsel to prepare to examine his physician. [Click here]
A pregnant employee who was advised that she was being terminated due to a business slowdown had her discrimination complaint dismissed because she had not met the onus of proving that it was more likely than not that her pregnancy was a factor in the employer's decision to terminate her employment. [Click here]
An employee was not discriminated against when the employer, in accordance with the provisions of the collective agreement, did not credit her with seniority while she was on maternity leave. [Click here]
An employee who alleged that the employer had not adequately investigated her complaints of sexual harassment was granted production of internal investigation reports, all witness statements and recordings of witness interviews, and all notes taken. They were to be produced in an un-redacted form. [Click here]
An employer who failed to meet with the employee and her union representative to meaningfully consider the prospects for accommodation was considered to have breached its procedural duty to accommodate. [Click here]
A termination for innocent absenteeism was upheld where the employee had been absent for 21 months and had been unsuccessful in completing two graduated returns to work. [Click here]
An employee who had lost his driver's license for health related reasons could not be downgraded into a labourer's classification where the loss did not materially affect his ability to perform his job. [Click here]
The British Columbia Court of Appeal has affirmed the accepted arbitral view that unions need not be consulted with regard to every instance of employee accommodation.
The arbitrator, in Telus Communications Inc., 2017 BCCA 100 (CanLII), had determined that the union was entitled to receive notice of all employee requests for accommodation involving matters of medical disability. That decision was subsequently quashed by an order of the British Columbia Supreme Court.
In confirming the decision of the lower court, the Court of Appeal cited three arbitral decisions that persuasively described the correct approach to a union's inherent right to participate in the accommodation process.
In National Steel Car , arbitrator McLaren had concluded that in the absence of a negotiated right, a union was not entitled to generally be present during all meetings with its members and the Company personnel for WSIB, sick benefit, early and safe return to work and benefit, pension and insurance purposes. In the 2001 case of St Paul's Hospital, arbitrator Jackson stated that the law did not impose a general obligation on an employer to involve the union in its search for accommodation. The union should be offered that opportunity if it is a potential party to the discrimination either because the union participated in formulating the work rule or practice that discriminates (usually because it is part of the collective agreement) or if the union's co-operation with the employer's efforts to find a reasonable accommodation is necessary for a solution to be found And arbitrator McConchie, in Vanderhoof Specialty Wood Products , had similarly stated that the union has a concurrent responsibility with the employer to accommodate, which only arises if a union is party to discrimination. It may become a party in two ways: (1) by the negotiation of work rules in the collective agreement; or (2) by impeding employer efforts to accommodate. In day to day operations, the union duty only arises when its involvement is required to make accommodation possible and no reasonable alternative resolution has been found.
Telus had accepted that that the union had a right to participate in cases where the employee had asked for union representation. The Court of Appeal accepted that view, and nothing in the decision should be taken to limit the union's role where the employee has asked for union involvement in the process.
Issues related to a union's role in effecting an accommodation are addressed in sections 14:433 and 14:601 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
In Andy Meyers Lodge, 2016 HRTO 371 (CanLII) (Sanderson), the employer requested that the Tribunal order the employee to produce a copy of his medical file that was in the possession of his physician. The employer contended that the file was relevant to the issue of whether the employee had a disability, and further, that the documents were required to prepare for the examination of this particular physician. In ordering that the documents be produced, but with respect to a more limited period of time than originally sought, the adjudicator stated:
In cases where [employees] have placed their medical condition at issue before the Tribunal, the Tribunal has required [them] to obtain and produce arguably relevant medical documents from their physicians and other medical practitioners.
In response to the employee's concerns regarding the confidential nature of his medical records, the Tribunal stated that Rule 3.3 of the Tribunal's Rules states that:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
Issues relating to production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
2. A pregnant employee who was advised that she was being terminated due to a business slowdown had her discrimination complaint dismissed because she had not met the onus of proving that it was more likely than not that her pregnancy was a factor in the employer's decision to terminate her employment.
In Ontario 1903626, 2016 HRTO 560 (CanLII) (Pickell), the employee alleged that the employer had discriminated against her when it terminated her employment due to her pregnancy.
There was no dispute that the employee had advised the employer at the time of hire that she was 15 weeks pregnant and that she would be going on a maternity leave in approximately four months. The evidence also established that the employer had told the employee, at the time of hire, that although the employee may need to work long hours as a cashier, she could rest at one of the tables in the restaurant so long as it was not busy and there were no customers there. This was considered by the adjudicator as a willingness to provide accommodations for the employee's pregnancy-related needs.
The employee was ultimately terminated approximately 8 weeks after her hire. The employer's position was that the termination was necessitated by a reorganization of positions necessitated by a slowdown in business.
The adjudicator stated that she found it unlikely that the employee had been terminated because she was pregnant or because she would be taking maternity leave some two months later. She then considered whether the employee's pregnancy-related accommodation requests were a factor in the termination of her employment. The employee's requests to sit down when not busy had been accommodated, with the adjudicator concluding that the employee's accommodation requests were not a factor in her termination.
The adjudicator stated that several factors supported the employer's claim that it had re-organized the cashier's position for valid business reasons. She accepted that there had been a slowdown, and that the other cashier, who possessed a food handling certificate, was able to perform the additional salad preparation duties that had been added to the modified cashier's position.
While the adjudicator expressed concerns on whether some of the evidence might suggest that the reorganization was merely a pretext to avoid having to continue to accommodate the employee's needs, that evidence was not sufficient to draw an inference of discrimination on a balance of probabilities. The employee had not met her onus of proving that it is more likely than not that her pregnancy was a factor in the [employer's] decision to terminate her. Her application was dismissed.
The issue of pregnancy related discrimination is considered in section 13:500 of the Illness and Absenteeism manual and its supplement.
In Limestone District School Board, 2016 HRTO 557 (CanLII) (Brennenstuhl), the employee claimed that the employer discriminated against her when she was not granted seniority while, as a casual employee, she was absent on unpaid maternity leave.
The employee had been a casual employee for approximately eight years before being hired into a full time position. At that point, she was, in accordance with the collective agreement, credited with seniority based on the actual days that she worked as a casual employee. Accordingly, she didnt receive seniority credit for periods of maternity leave while employed as a casual employee. It was agreed that the employer's actions complied with the terms of the collective agreement
In seeking seniority credit for periods of maternity leave, the employee relied on the Ontario Court of Appeal decision in Orillia Soldiers Memorial Hospital, 1999 CanLII 3687 (ON CA). The adjudicator summarized that decision in the following terms:
Under the clauses in question [in that case], nurses on unpaid leaves of absence remained employees but did not accumulate seniority after certain periods set out in the collective agreements. As well, the employer did not contribute premiums to their benefit plans after the employees had been receiving long-term disability payments for specified periods On appeal, [the Court of Appeal] found that the clauses respecting seniority violated the Code. Employer contributions to employee benefit plans were found to be a form of compensation, and it is not discriminatory to distinguish between employees who are actively providing services to the employer and those who are not for the purpose of compensation. Therefore the lack of contribution to benefit plans for employees on long-term disability was not discriminatory. With respect to the accumulation of seniority, the Court held, accrual of seniority was not for the purpose of determining compensation, but for access to workplace opportunities like filling vacancies and determining the order of layoffs and hire backs. In Orillia Soldiers, the seniority provisions were triggered simply by the status of being an employee, a status that long-term disabled employees retain. Therefore depriving employees of seniority during periods of absence in excess of one year due to disability made them increasingly vulnerable to layoff and also less able to compete equally for promotions. As a result the seniority provisions in question were discriminatory, and were struck down.
The adjudicator distinguished this case from the Orillia Soldiers case, where the nurses were full-time employees who were accruing seniority since the date they were hired. Their seniority accrued based on just the passage of time by virtue of their status as employees. That was to be contrasted with the case here, where the employee was a casual employee who, during her period of casual employment, had no entitlement to accrue any seniority.
The adjudicator concluded that the employee was not discriminated against when the employer, in accordance with the provisions of this Collective Agreement, did not credit her with seniority while she was on maternity leave.
Issues relating to credit for seniority and benefits while absent on a medical leave was considered in section 14:623 of the Illness and Absenteeism manual and its supplement.
4. An employee who alleged that the employer had not adequately investigated her complaints of sexual harassment was granted production of internal investigation reports, all witness statements and recordings of witness interviews, and all notes taken. They were to be produced in an un-redacted form.
In Toronto Police Services Board, 2016 HRTO 449 (CanLII) (Pickel), the employee alleged that she was subject to a poisoned work environment, sexual harassment and sexual solicitations, and that her employer did not adequately investigate her complaints. She sought and was granted, among other items, production of reports of three internal investigations conducted by her employer, two conducted by the Professional Services Unit and one conducted by the Diversity Management Unit. The adjudicator directed that all witness statements, recordings of witness interviews, notes taken in relation to witness interviews and communications regarding the investigations must be produced in an un-redacted form. The employer was also ordered to provide the employee with a full copy of the employee's Professional Standards file.
The employer and the Toronto Police Association, as intervenor, filed requests seeking statements and particulars in the possession of the Special Investigations Unit. The adjudicator stated that because that entity is an independent third party, the procedures under the Ontario Code required that the employer and the Association file and serve on the Special Investigations Unit a Form 10 third party production request. The third party was then to file a Form 11 Response with the Tribunal The adjudicator stated that she would address the request once she had received both the Form 10 Request and the Form 11 Response.
Issues relating to production of documents are addressed in Chapter 10 of the Illness and Absenteeism manual and its supplement.
5. An employer who failed to meet with the employee and her union representative to meaningfully consider the prospects for accommodation was considered to have breached its procedural duty to accommodate.
In Toronto Civic Employees Unions (TCEU), Local 416, 2016 CanLII 10424 (ON LA) (Knopf), (Interim award # 2), it was stated that following the first interim award, the employee in question had offered to provide current or updated information regarding his restrictions. In response, the employer advised that it would not consider any placement of the employee until he underwent an Independent Functional Abilities Evaluation (FAE). It was the union's view that the information on file was sufficient to enable the employer to place the employee in a non-accommodated position or with appropriate accommodation in another position. Despite the union's concern about further delay, the union and the employee agreed to comply with the employer's request for an expedited FAE. The FAE, which was not completed until immediately prior to the hearing, identified several positions that the employee might be able to perform. Based on the Job Demands Analysis, the union contended that the employee could perform two of the jobs with minimal accommodation and a third if some of the duties could be bundled. The union sought to have the employer meet further with the employee but the employer refused. An earlier meeting that had been held was described as being merely pro forma.
The arbitrator was highly critical of the employer's position:
Having required and received the FAE and having it considered by the Employer's Health Department, the employer must now sit down again with the union and do what the first interim award instructed. It must work with the union and the [employee] to address whether there is meaningful work available to the [employee] that will not result in undue hardship. When the employer says at this hearing that it is declining to meet again with the union because it wants to be able to retain the right to manage the workplace, the employer is again failing to appreciate that its right to manage the workplace must be exercised in compliance with the collective agreement and the Human Rights Code.
By failing to engage with the union and the [employee] about the current situation where the [employee] is still seeking active employment, and by failing to discuss possible accommodation of his disabilities, the employer is continuing its procedural breach of the collective agreement and the Human Rights Code
It is trite law to say that the duty to accommodate is an ongoing duty. It cannot be met by one meeting where, by the employer's own submissions, it is left with unanswered questions about aspects of the [employee's] current medical situation. If the employer has questions or concerns, those questions and concerns must be put to the [employee] and discussed with the union to see if they will actually create dangers to the [employee] or others or result in undue hardship to the employer. Such a discussion is basic to the parties shared responsibility for the accommodation of bargaining unit members.
The arbitrator ordered that the parties immediately meet for the purpose of engaging in meaningful discussions with the aim of determining how the employee can be returned to work pursuant to the terms of the collective agreement.
Issues relating to the procedural aspect of the duty to accommodate are addressed in Chapter 14 of the Illness and Absenteeism manual and its supplement.
In Sun-Rype Products Ltd, 2016 CanLII 7692 (BC LA) (Dorsey), the arbitrator accepted that the employer had cause to dismiss the employee for innocent absenteeism after an absence of 21 months and two failed graduated returns to work with no foreseeable return to work.
The union had asserted that the employer had agreed that it would not dismiss employees who had been absent for more than 12 months for innocent absenteeism for an indeterminate time. It relied on a provision that stated that:
If an employee is absent from work for a continuous twelve (12) month period he shall be moved to the bottom of the seniority list with his seniority date and characterized as inactive. Should the employee return to work at some future time, he shall be returned to the regular seniority list. The employee will retain his posting, and will return to the same spot previously held on the regular seniority list.
The arbitrator dismissed that contention, stating that the subject matter, language and placement of the article in the collective agreement was not intended to create a category of employees immune to dismissal for innocent absenteeism. Such an extraordinary benefit would require much clearer language than identification of the placement of an employee within the seniority list On a plain reading, the mutual intention of the language has a simple administrative purpose. It relieves the employer from an obligation to recurringly contact certain employees who are absent and unable to report to work when scheduling work. It relieves the employees categorized as inactive from the burden of repeated contact and explanation to a scheduler why they cannot report to work [The article] provides no immunity or protection from dismissal for innocent absenteeism. There is no agreement that an employee at the bottom of the seniority list categorized as inactive and not in receipt of long-term disability benefits will not be dismissed for innocent absenteeism.
In upholding the termination, the arbitrator commented that the employer was correct in its conclusion on review that an employee needs a basic level of fitness to have a working trial with prospects of success. [The employee] was unable to attain that level of fitness with [an] accompanying commitment to work through pain before or since his dismissal. He further stated:
As compassionate as fellow employees and individual managers might be, the employer's legal duty to accommodate a disabled employee exists in a business context. Whatever the nature of the accommodation, employees must work and perform in productive jobs. [This employee] cannot.
Other employees might be willing to temporarily carry a heavier load, but an accommodation cannot be predicated on increasing the burden for fellow employees. As the union recognizes, it cannot involve displacing more senior employees in lighter duty positions that they waited their turn through the years to successfully compete to obtain.
The employer had not discriminated against the employee, for it had discharged its duty to accommodate to the point of undue hardship.
The issue of termination for innocent absenteeism is addressed in section 17:300 of the Illness and Absenteeism manual and its supplement.
7. An employee who had lost his driver's license for health related reasons could not be downgraded into a labourer's classification where the loss did not materially affect his ability to perform his job.
In Chatam-Kent (Municipality), 2016 CanLII) (ON LA) (Kaplan), an employee of 29 years had his driver's license medically suspended following a seizure while at work. Shortly after his return to work, he resumed all of his duties except for driving to and from job sites. After approximately one month, the employer reduced the employee's pay from that of operator to that of labourer, a reduction of $5.93 per hour. In doing so, the employer purported to rely on a much earlier Memorandum that created the labourer classification for employees who had lost their driver's license.
The arbitrator acknowledged that such agreements, reached between the parties, should be given considerable deference. But this was not an appropriate case in which to do so. Although the Memorandum purported to be in compliance with the Human Rights Code, it was not. As an employee with a disability, the [employee] is entitled to accommodation and what that means is that the workplace parties must consider his disability and determine whether he can be accommodated in his position up to the point of undue hardship. What happened here instead was the blanket application of the [Memorandum]. This is the direct antithesis of what the accommodation obligation requires. The essence of accommodating people with disabilities is individualization. The union, the employer and the employee must be involved and all options must be considered. That did not happen here.
This was not a case where no accommodation was possible or where undue hardship could be established. While the employee was no longer driving, it did not really matter who was driving to and from the work site. What matters is whether [the employee] can do the job, and on the evidence, he can and does. There was no evidence of any hardship whatsoever and there was no basis to reduce the employee's pay. There was no topping up. There was no paying something for nothing.
All that has happened here is that a long-service employee with a disability is not doing one small part of the job that other employees can and willingly do at zero cost to the employer so as to enable that long-service employee to retain and continue in his job. Simply put, in this case holding a driver's license, as the [employee] has demonstrated, is not essential to his position. The objective evidence establishes that the [employee] can continue to do his job he has been doing the job and so he should be paid the job rate. This is required by the Code and by the collective agreement.
The grievance was allowed.
Issues relating to accommodation in a lower paid position are addressed in section14:615 of the Illness and Absenteeism manual and its supplement.