llness and Absenteeism.com - May 2018 Newsletter

In this edition, you will find:

A.  Featured Case:  A disabled employee who was required to work without adequate accommodation was found to have suffered an adverse impact for the purpose of establishing a prima facie case of discrimination. The employee was also found to have suffered an adverse impact when she was placed on an attendance management program immediately after having returned to work from a stress-related illness.

The attendance management program, which was on its face discriminatory, could not be justified as a bona fide occupational requirement, for it did not accommodate persons with a chronic disability to the point of undue hardship.    [Click here]

B. Recent Decisions of General Interest

1. Confidentiality assurances that are provided to a potential witness will not necessarily shield their evidence from production.    [Click here]

2. An adjudicator has held that subsequent inflation should be considered when relying on damage quantums that had been assessed several years earlier. This case reviews the factors that adjudicators have considered in determining the damages to be awarded in human rights matters.     [Click here]

3. An employer was found to have improperly rejected a claim for bereavement leave in the case of the death of the grandfather of an employee’s partner. By way of remedy, the employee was awarded four additional floating holidays for use in the upcoming year.    [Click here]

4. An arbitrator upheld the termination of an employee who had been abusive and aggressive toward his employer. Payment of a sum of money in lieu of reinstatement would only have been appropriate where there was no just cause and the employment relationship was no longer viable. The employee’s personality traits (the employee was compulsive, paranoid and narcissistic) were not considered to constitute a medical/psychological condition that served to relieve the employee from the consequences of his actions.    [Click here]

5. A human rights tribunal will not normally have jurisdiction to review a disability-related decision that was made in the context of an employer’s benefit plan.    [Click here]

 


 A.  Featured Case: A disabled employee who was required to work without adequate accommodation was found to have suffered an adverse impact for the purpose of establishing a prima facie case of discrimination. The employee was also found to have suffered an adverse impact when she was placed on an attendance management program immediately after having returned to work from a stress-related illness.

The attendance management program, which was on its face discriminatory, could not be justified as a bona fide occupational requirement, for it did not accommodate persons with a chronic disability to the point of undue hardship. 

In Nova Scotia Department of Environment, 2017 CanLII 51556 (NS HRC) (Raymond), the employee had been involved in two motor vehicle accidents. She alleged that she suffered chronic pain as a result of her injuries, and that she suffered further injury as a result of her employer’s failure to accommodate her on her return.

The employee worked in a service centre where she provided clerical services to members of the public. She alleged that on her  return to work, she had asked several times that she be relieved of the “mail duties” that were part of her tasks as a clerk. She also unsuccessfully applied for other clerical positions that she thought would be more suitable.

On the employee’s latest return to work, she was immediately advised that she was being placed on an attendance management program. She stated that she was told that she would be terminated if her attendance did not improve. She alleged that the employer’s treatment caused her stress and anxiety, which in turn made her condition worse and ultimately rendered her unable to work. At the time of the hearing, the employee was on long term disability.

The employer’s position was that the employee did not suffer from a physical disability but rather somatization.  Somatization was stated to be “a psychological condition whereby a person presents physical symptoms in order to express emotional issues.” The Court of Appeal, in a related proceeding, had concluded that because “mental disability” had not been cited as a ground in the originating complaint, consideration of the complaint must be limited to the ground of “physical disability.” The employer therefore contended that the complaint should be dismissed.

The adjudicator first considered whether the employee had established a prima facie case of discrimination. She cited the Supreme Court of Canada decision in Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) as summarizing the proper test:

… To demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Act; that they experienced an adverse impact with respect to the service, and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the [employer] to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

Following consideration of extensive and conflicting medical reports, the adjudicator concluded that the employee was suffering from a physical disability.

In considering this issue, the adjudicator stated:

In my view, the [employer’s] actions and the issue of whether or not discrimination occurred is required to be determined on the basis of what the individuals involved in this matter knew, believed or perceived at the time the events occurred. Fairness requires that the test of discrimination be applied to factual “reality” as that was perceived by the parties at the time.

The adjudicator commented that this approach was required by section 4 of the Nova Scotia Human Rights Act. That section provided that “For the purpose of this Act, a person discriminates where the person makes a distinction, whether intentional or not, based on a characteristic or a perceived characteristic …”

The employer alleged that if anything, the employee suffered from a mental rather than a physical disability. The adjudicator accepted that the employee suffered from a physical disability of chronic right neck and shoulder pain of a musculoskeletal nature. She commented that “there is currently no scientific means to measure pain so as to fully understand the nature and extent of pain experienced by another person. This construct by necessity requires the objective assessment by the physician of the subjective reporting by a patient.”

One of the employer’s medical experts had opined that chronic pain was a dubious diagnosis given that he had been unable to discover an underlying anatomical cause. The adjudicator rejected that view:

A long, complicated medical history can make it difficult to identify the cause of chronic symptoms. Medical science has its limits. The medical profession has its limits. There is a difference between a conclusion that no underlying anatomical cause exists for the [employee’s] symptoms and a conclusion that no anatomical cause has been found for these symptoms. The [medical expert] cannot with fairness state conclusively that there is no underlying anatomical cause for the [employee’s] symptoms in this case. He did not examine the [employee] to try to find an underlying cause … [He] did not have an opportunity to conduct any tests of the [employee]. He simply reviewed her extensive medical dossier. If, in his opinion, none of the previous physicians identified the cause of the [employee’s] chronic pain, that does not necessarily mean that there is no cause for her pain, or that her pain is not real. All that [the medical expert] can fairly testify to is his opinion that no anatomical cause for chronic pain has been found.

The adjudicator concluded that while somatization may explain some of the employee’s symptoms, the evidence did not establish that she did not suffer from a physical disability. Such a diagnosis would not serve to negate all of the employee’s symptoms and functional limitations.

In their closing submission, the employer’s counsel submitted that chronic pain was a mental rather than a physical disability. Here, the adjudicator found that the employee’s chronic pain constituted a physical disability, causing her to have physical functional limitations (as well as mental limitations) which required accommodation at work.”

On the issue of “adverse impact,” the adjudicator first considered whether the employee suffered an adverse impact by being required to work without proper accommodation, and secondly, whether the employee’s immediate placement in an attendance management program on her return to work also caused the employee to suffer an adverse impact. The adjudicator stated that a “lack of accommodation does not, without more, support a finding of adverse treatment.”

It is settled law in this province that an adverse impact falls upon an employee who has a disability where, by reason of her disability, she is unable to meet the requirements of her position without accommodation. Accordingly, it is not a lack of accommodation alone that leads to a finding of adverse treatment but rather the experience of being expected to work with a disability when the employee cannot participate effectively and equally within the workplace because of disability, without accommodation.

The employer erred when it provided time-limited accommodation:

As the [employee’s] problems were chronic, it [was] not reasonable on the facts for the [employer] to presume that accommodation would only be required for two weeks; rather it ought to have been apparent that the accommodations with respect to her duties and environment would be ongoing until they were no longer medically necessary, and, would, perhaps, be indefinite.

… It would have been reasonable for the [employer] to seek clarification if it was uncertain whether the [employee’s] impairments were permanent or temporary. If the [employer] believed that there was an ambiguity in the information it received respecting duration of the work accommodations required, or otherwise, [it should have taken steps] to clarify the ambiguity.

The fact that the employee was required to work as a disabled employee without all proper accommodations in place, and was unable to do so, constituted “an adverse impact for the purpose of satisfying the [employee’s] burden of establishing a prima facie case of discrimination.” The adjudicator concluded that this fact likely aggravated the employee’s symptoms. She also stated that “an aggravation of disability, caused by a lack of accommodation, leading to an inability to work, constitutes an adverse impact.”

The adjudicator also found that the employee suffered an adverse impact when she was placed on the employer’s attendance plan immediately after her return from an extended absence. The letter that did so was based on a template. It stated in part that “continued excessive absenteeism could lead to further action, up to and including termination of employment.” At the initial meeting following the employee’s return, the employer explained that absent satisfactory improvement, the options could include placement outside the department or retirement.

The adjudicator stated that “the proposition that being placed on an attendance management plan is not in and of itself  an adverse impact must be considered in the context of the facts in this case in relation to the manner that this attendance management program was applied” to the employee. Here, the potential impact of the program was presented to the employee immediately following her return from a lengthy absence, with the result being that it exacerbated her condition:

In my view, accommodating the [employee’s] depression and stress included not adding to it unnecessarily. Placing the [employee] on an attendance management plan as soon as she returned to work constituted additional and unnecessary stress that was contraindicated by her physician. In short, the message should not have been delivered on the first or second day of her return. This was found to constitute an adverse impact.

The adjudicator also found that

1.) the requirement that ease back days be counted as full days of absence; and, 2.) the requirement that time taken to attend medical appointments be counted against the [employee’s] attendance, constitute disadvantages and adverse impacts upon the [employee], as she required ease back days and time off work to attend osteopathy treatment as accommodations. These were all counted as days that could lead to the [employee’s] termination or hasten the day of its arrival ahead of other employees who do not have a chronic disability.

In considering the duty to accommodate, the adjudicator commented that the employer failed to offer evidence or make submissions respecting any undue hardship that accommodation would have caused. She also stated:

… The fact that an employer has tried an accommodation and it failed does not end its duty. The fact that an employer tries several or many accommodations and they fail does not necessarily end its duty to accommodate, depending on the facts. The duty to accommodate can only logically end when there is nothing further that can be done or whenever what remains to be done constitutes an undue hardship to the employer.

The adjudicator also stated that there was no evidence that further accommodations that were available to be implemented, such as a detailed functional analysis of available positions and an employee transfer to a quieter and less stressful job, constituted undue hardship to the employer.

The adjudicator found that the employer’s attendance management plan, on its face, discriminated against the employee as a person with a chronic disability, as compared to other employees and other disabled employees whose disability is not chronic in nature, and that it was applied to the employee in a discriminatory manner. In considering whether the attendance management plan was discriminatory, the adjudicator stated:

… [The employer’s] attendance management plan incorporated no clear provisions to allow for accommodation of employees with chronic disabilities … The attendance management plan has the characteristics of a discriminatory standard in the workplace … It affords the employer complete discretion over what constitutes regular or acceptable attendance. [It] contains no reasonably objective standard of acceptable attendance or any specified standard in this regard for that matter. There is no objective criteria respecting the timing of its application (the trigger for its application) or with respect to the time that an employee is given to improve their attendance … Days of absence for chronic disability, days required for ease back to work and time off required for medical treatment was not accommodated in any respect by the policy itself or in the employer’s application of the plan to the [employee]. The arbitrariness of these decisions and the lack of evidence that the [employee’s] chronic disability was taken into account in these imposed standards persuades me that the policy was applied in a discriminatory manner to the [employee].

The adjudicator then turned her attention to whether the employer was able to establish that the attendance management program, as a discriminatory standard, constituted a bona fide occupational requirement or had a bona fide and reasonable justification.  She found that it could not:

In this case, there is no suggestion that this policy accommodates persons with chronic disability through individualized assessment to the point of undue hardship. There is no evidence that it would be an undue hardship to the [employer] to have its attendance management policy accommodate persons with chronic disabilities.

The policy was found to have failed at the third step of the Meiorin analysis.

The issue of remedies to be awarded was addressed in Nova Scotia Department of Environment, 2017 CanLII (NS LA) (Raymond).

 


B.     Recent Decisions of General Interest

1. Confidentiality assurances that are provided to a potential witness will not necessarily shield their evidence from production.  

In Toronto Police Services Board, 2016 HRTO 801 (CanLII) (Pickel), the employer had sought production of documents arising from an investigation conducted by the Special Investigations Unit (SIU). The SIU, as a third party, opposed production of witness statements from witnesses who had not provided their consent to disclosure. It advised that all witnesses had been provided with a confidentiality assurance and it contended that its ability to assure the cooperation of witnesses could be impaired if the Tribunal were to order release of the statements.

The Tribunal ordered production of the statements:

… The witness statements are arguably relevant, as they were provided in the investigation of one of the allegations raised in the [employee’s] Application to this Tribunal. This case will turn on credibility. Therefore, prior statements provided by the [employee] and witnesses who will appear before this Tribunal are arguably relevant to testing the testimony provided in this proceeding. In my view, any impact of the disclosure of the witness statements and derivative records is outweighed by the importance of disclosure in ensuring the Tribunal has access to relevant evidence to make an appropriate decision in this case. In my view, any confidentiality assurances must be understood to be subject to the operation of law, whether in courts or administrative tribunals such as this one.

 


2. An adjudicator has held that subsequent inflation should be considered when relying on damage quantums that had been assessed several years earlier. This case reviews the factors that adjudicators have considered in determining the damages to be awarded in human rights matters.     

In NCR Leasing Inc. o/a Aaron's Stores, 2016 HRTO 1139 (CanLII) (Best), the employer was found to have terminated the employee while he was on disability leave, and to have further discriminated against him when it advised that it would not re-hire him because of a concern that he might reinjure himself.

The employee suffered from what was ultimately diagnosed as a pinched nerve. When the employee advised the employer that he was returning after an absence of approximately four months, the employer informed him that he had been replaced because his lack of formal contact had caused the employer to conclude that he had abandoned his job. The adjudicator rejected that assertion, for he found that the employee had been diligent in keeping the employer informed of his health status. The employer also advised the employee that he could re-apply if he wished but he would not be rehired on the chance that he might re-injure himself.

Although the employee had not called any doctor as a witness, his testimony and the doctor’s notes that he tendered were considered to be sufficient to establish that he was suffering from a disability. In addition, the employer’s refusal to allow him to return to work was based on a past or presumed disability for the purposes of s. 10(3) of the Code.

The employee testified that had he not been terminated, he would have worked for approximately seven months prior to becoming unavailable to continue with the employer. He was awarded lost wages for thirty weeks. It was irrelevant that the employee had only been employed for a short period of time:

Although … it may be appropriate to recognize the consequences of losing a long-term job in assessing damages, the fact that the employee was only employed for a short period is not a relevant factor in determining the amount of lost income under the Code. Rather the purpose is to put the [employee] into the position he would have been if the discriminatory actions had not occurred.

The adjudicator commented that the Ontario Court of Appeal in Strudwick, 2016 ONCA 520 (CanLII) had recently adopted the principles set out by the Tribunal in Best Buy Canada, 2010 HRTO 1880 (CanLII). The adjudicator also set forth some of the relevant factors that were noted in the earlier case of Sanford v. Koop, 2005 HRTO 53 (CanLII).

(i) the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

(ii) the ongoing impact of the discrimination and/or harassment on the complainant’s  emotional and/or physical health;

(iii) the complainant’s vulnerability;

(iv) objections to the offensive conduct;

(v) the respondent’s [i.e. the employer’s] knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;

(vi) the degree of anxiety that the conduct caused; and

(vii) the frequency and intensity of the conduct.

The adjudicator commented that “some Tribunal decisions have provided a higher award of compensation where the impact on the [employee] was more significant because of events leading up to a discriminatory termination … [while] … in other cases, the Tribunal has ordered a higher amount of compensation based on the particular vulnerability of the [employee] at the time of termination and the ongoing impact.”

The adjudicator found that most of the foregoing factors did not arise in this case. Consequently, the compensation to be awarded was based “primarily on the objective impact that an individual would face following a discriminatory termination.”

The adjudicator also commented that inflation should be factored in when relying on awards that are several years old:

To ensure that “cases with equivalent facts lead to an equivalent range of compensation”, as noted in [Best Buy Canada, 2010 HRTO 1880 (CanLII)], it is also appropriate to take into account the effect of inflation as a factor in determining the appropriate award.

The lost earnings component of the award was determined to be $17,777 plus 4% vacation pay, less statutory deductions. The sum of $17,000 was awarded as compensation for injury to the employee’s dignity, feelings and self-respect. Pre and post-judgment interest were awarded on the lost earnings, with post-judgment interest awarded on the $17,000 levied as compensation for injury to dignity, feelings and self-respect.

 


  3. An employer was found to have improperly rejected a claim for bereavement leave in the case of the death of the grandfather of an employee’s partner. By way of remedy, the employee was awarded four additional floating holidays for use in the upcoming year.    

In Columbia Forest Products, 2017 CanLII 15842 (ON LA) (Nyman), the issue was whether the grieving employee was entitled to four days bereavement leave when the grandfather of his partner passed away. In essence, was the employee the spouse of his partner whose grandfather had died?

The employer denied the bereavement leave on the basis that the employee’s partner did not, at the date of death, satisfy the definition of a common-law spouse in that they had not been living together in a conjugal relationship for one year.

The term “spouse” was not defined. The arbitrator stated that this was a case of collective agreement interpretation. The principles of interpretation were well established:

The purpose is to determine the intention of the parties. This involves interpreting the words used in their plain and ordinary way, having regard to the context and purpose of the provision in which they appear and the collective agreement as a whole.

The arbitrator further stated:

Whether two persons are spouses is a question of fact. In the absence of a legal marriage, the question is more nuanced and generally requires that they are in a conjugal relationship and hold themselves out as spouses. The factors that are relevant considerations are varied and include whether they have a child together, the length of time that they have lived together and their financial and emotional interdependence … In the absence of a negotiated [time period], it would be inappropriate for me to read one in.

… On balance, the relationship [between the partners] while new [they had been cohabiting for seven months], is still marriage-like or conjugal. They are certainly not just roommates, and they are much more than mere lovers or boyfriend and girlfriend. They have established a home for themselves … They are committed to each other, have built an emotional and financial interdependence and envision a future where that will grow over time.

The arbitrator upheld the employee’s claim for bereavement leave. In terms of remedy, the employee was granted four additional floating holidays during the upcoming year.

 


 4. An arbitrator upheld the termination of an employee who had been abusive and aggressive toward his employer. Payment of a sum of money in lieu of reinstatement would only have been appropriate where there was no just cause and the employment relationship was no longer viable. The employee’s personality traits (the employee was compulsive, paranoid and narcissistic) were not considered to constitute a medical/psychological condition that served to relieve the employee from the consequences of his actions.    

In Ottawa (City), 2017 CanLII 611 (ON LA) (Goodfellow), the employee was a 52 year old water meter reader who had been employed for 22 years. He had, with the concurrence of the union, been transferred to that position because of his inability to work well with others in his previous position.

The incident in question arose after the employee was questioned by a manager concerning 200 plus homeowner readings that were “missed” over a two day period. The employee immediately rushed over to the manager and violated his “personal space”. After physically threatening the manager, the employee elbowed the manager in his sternum, causing him to stumble back two or three feet against his desk.

The employee was described as having an “aggressive personality”. He was described as being “quick to anger” and as a person who would “attempt to dominate or frighten the individual no matter to whom he was talking.” He was said to be an “aggressive bully.”

The employee was placed on paid investigatory leave for seven months, and was terminated after a further two months of unpaid leave.

The report of a psychiatrist that was introduced into evidence answered “no” to the question of whether the employee had a medical/psychological condition that contributed to his behaviour/actions. It further stated that the employee “did not have any Axis I DSM IV disorders” that contributed to his conduct. The psychiatrist however explained that the employee suffered from “some underlying personality traits” that had contributed. These were described as being “compulsive”, “paranoid”, and “narcissistic.”  These were longstanding personality traits that caused the employee “to react strongly to perceived slights from others … The particular combination of traits were ones that “likely would not benefit from psychological intervention” because they included being “unlikely to admit to having any personal problems …”

The psychiatrist further stated that he did not believe that there was anything in the employee’s profile to justify special treatment.

The union suggested that the employee receive a monetary award if he was not reinstated. The arbitrator rejected that suggestion, stating that payment of “a sum of money in lieu of reinstatement would only arise if there were no just cause for discharge and an employment relationship that was no longer viable. Here there is certainly an employment relationship that is no longer viable but there was ample cause for discharge.” In upholding the termination, the arbitrator considered both the employee’s disciplinary record and the employee’s lack of remorse. It was the employee’s continuing view that the manager “got what he deserved.”

 


5. A human rights tribunal will not normally have jurisdiction to review a disability-related decision that was made in the context of an employer’s benefit plan.  

In Workplace Safety and Insurance Board, 2016 HRTO 1165 (CanLII) (Best), the employee’s human rights application was dismissed on the basis that it amounted to “a challenge to decisions made in the context of a benefits program respecting which the Tribunal has no jurisdiction under the Code.” The adjudicator relied on Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (CanLII) where that Tribunal held:

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.

The employee had alleged that the manner in which the WSIB’s staff had communicated with him was abusive and bullying, but he had failed to point to any evidence that the treatment he had allegedly received was because of his disability. In dismissing the Complaint, the adjudicator also relied on Persaud v. Workplace Safety and Insurance Board, 2013 HRTO 1852 (CanLII), where that Tribunal stated:

It is not enough for the applicant to show that there is a reasonable prospect that evidence that he has or that is reasonably available to him can show that the WSIB staff abused, harassed and bullied him, and gave him poor customer service. He must also show that there is a reasonable prospect that he can show a link between these events and his disability …