Illness & Absenteeism - May 2021 Newsletter
Welcome to the May, 2021 issue of the Illness and Absenteeism newsletter. In this issue, you will find:
A. Featured Case:
In order to successfully challenge a mask-wearing requirement on human rights grounds, a complainant must establish that he suffers from a code-recognized disability that makes it relatively impossible to wear a medical mask. [click here to read more]
B. Other Decisions of General Interest
- An employer has a duty to inquire as to an employee’s health before taking steps to adversely affect the employee’s employment. The duty to inquire is only triggered if the employer has reason to suspect that a medical condition may be impacting the employee’s ability to work.[click here to read more]
- A recent decision of the British Columbia Human Rights Tribunal set forth a helpful methodology for assessing witness credibility. [click here to read more]
- A union whose members were working from home during the pandemic was unsuccessful in seeking to compel an employer to reimburse employees for all out-of-pocket expenses. [click here to read more]
- Arbitrators have more recently been prepared to consider bifurcation of hearings where the failure to do so might involve a delay in completing a hearing involving pandemic related safety issues. [click here to read more]
- The four Brown and Beatty categories that serve as a lens to the arbitrability of disability claims can accommodate an Administrative Services Only (“ASO”) plan, i.e. one where the employer retains a third-party to administer a self-insured plan. [click here to read more]
- A grievance alleging than an employee was unable to work because of his medical condition was resolved, at least temporarily, by having the grievance held in abeyance pending a psychiatric assessment of the employee and a subsequent discussion between the parties. [click here to read more]
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A. Featured Case
In order to successfully challenge a mask-wearing requirement on human rights grounds, a complainant must establish that he suffers from a code-recognized disability that makes it relatively impossible to wear a medical mask.
In Aiana Restaurant, 2021 HRTO 280 (CanLII) (Tascona), the applicant alleged discrimination in retail services because of having been required to wear a mask before entering the respondent restaurant. A letter from the Tribunal (a Notice of Intent to Dismiss) advised that for the application to proceed, the applicant was required to identify a disability within the meaning of the Code and the reasons why that disability prevented him from wearing a mask. Although the complainant subsequently responded, he failed to explain the nature of his disability and the manner in which that disability impacted his ability to wear a mask. The Tribunal stated:
The Code protects people whose disabilities prevent them from being able to wear a mask and such protection is reflected in exemptions to mask-wearing rules. The Code does not protect people who refuse to wear a mask as a matter of personal preference. Accordingly, an applicant must give sufficient details for the Tribunal to determine whether the definition of disability in the Code and the case law interpreting that definition could be engaged …
The application was dismissed.
B. Other Decisions of General Interest
1. An employer has a duty to inquire as to an employee’s health before taking steps to adversely affect the employee’s employment. The duty to inquire is only triggered if the employer has reason to suspect that a medical condition may be impacting the employee’s ability to work.
In Crystal Cove Beach Resort, 2021 BCHRT 37 (CanLII) (Froese), the employee filed a complaint in which he alleged that the employer had discriminated against him on the basis of mental disability. The employer applied to dismiss the complaint under ss. 27 (1)(b) and (c) of the British Columbia Human Rights Code on the grounds that the complaint had no reasonable prospect of success in terms of establishing a connection between the termination of the employee’s employment and his alleged mental disability. It was the employer’s position that the termination was strictly due to inadequate job performance and that it was not aware, nor should it have been aware, that the employee had or may have had a mental disability before the decision was made to terminate his employment. Other than a brief reference to experiencing stress and anxiety in an email, the employee never mentioned to his co-workers or management that he had an alleged mental disability and he never sought any accommodations for an alleged mental disability. The adjudicator stated that:
The crux of [the employer’s] argument revolves around the timing of the termination of [the employee’s] employment. Its argument raises the issue of when an employer’s duty to inquire is triggered. That duty requires an employer to make inquiries about an employee’s health before taking steps that adversely affect the employee’s employment. Generally, the duty to inquire is only triggered if the employer has reason to suspect that a medical condition may be impacting an employee’ ability to work. … In Lewis v. Hour of Power Canada and another, 2018 BCHRT 251, the Tribunal described the duty to inquire in the following terms:
The reference to a duty to inquire is not a stand-alone legal duty but, rather, is an aspect of a respondent’s obligations in cases where it is not clear that accommodation is required, but there is reason to believe that accommodation may be required. If there is reason for an employer to be aware of a possible relationship between a disability and work performance problems, an employer who does not make further inquiries before taking action that adversely affects the employee runs the risk of a finding of discrimination, if there is indeed a relationship between the performance problems and a disability. Thus, an employer who is reasonably aware that there may be a disability requiring accommodation cannot ignore that fact and proceed to termination without running the risk of a Code violation …
The evidence established that between the time of the employer’s decision to terminate the employee’s employment was made and conveyed to him, he had advised his employer that he had a note from his doctor stating that he should be off work for two to four weeks, and that before he received the employer’s termination letter, he told the employer that his support person would be dropping off the leave request and doctor’s note. The adjudicator commented that while he was unable to say whether the employee would be able to prove the termination allegation, a hearing was required so that the issue of whether there was a nexus between the employee’s alleged mental disability and the termination of his employment could be determined.
In Central City Brewers and Distillers Ltd. (No. 3), 2021 BCHRT 28 (Chen), the adjudicator considered the issue of witness credibility. She adopted the standards set out in Faryna v. Chorney, 1951 CanLII 252 (BCCA), and Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296. After having noted that those cases were recently summarized in Brentwood Lanes Canada Ltd, 2019 BCSC 739 at paras. 89-91, she then set forth a methodology that could be used to ‘weigh” the issue of credibility:
Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the sincerity of a witness and the accuracy of the evidence that the witness provides. In some cases it becomes apparent that a witness has made a conscious decision not to tell the truth. In other cases, a witness may be sincere but their evidence may not be accurate for a number of reasons.
Evaluating the accuracy of a witness’ evidence involves consideration of factors including the witness’s ability and opportunity to observe events, the firmness of their memory, their objectivity, whether the witness’s evidence harmonizes with independent evidence that has been accepted, whether the witness changes his pre-trial evidence by the time of trial or their testimony at trial during direct and cross-examination, whether the witness’s testimony seems implausible, and the demeanour of a witness generally.
An acceptable methodology for assessing credibility is to first consider the testimony of a witness on its own followed by an analysis of whether the witness’s story is inherently believable in the context of the facts of the entire case. Then, the testimony should be evaluated based upon the consistency of the evidence with that of other witnesses and with documentary evidence, with testimony of non-party, disinterested witnesses being particularly instructive. At the end, the court should determine which version of events is most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
Adjudicator Chen stated that she was also guided by Johnstone, 2012 BCSC 1359 at para. 10, where the arbitrator stated:
The typical starting point in a credibility assessment is to presume truthfulness … Truthfulness and reliability are not, however, necessarily the same. A witness may sincerely attempt to be truthful but lack the perceptive, recall or narrative capacity to provide reliable testimony. Alternatively, he or she may unconsciously indulge in the human tendency to reconstruct and distort history in a manner that favours a desired outcome. There is of course also the possibility that a witness may choose, consciously and deliberately, to lie out of perceived self-interest or for some other reason. Accordingly, when a witness’s evidence is demonstrably inaccurate the challenge from an assessment perspective is to identify the likely reason for the inaccuracy in a cautious, balanced and contextually sensitive way.
In Toronto District School Board, 2021 CanLII 27922 (ON LA) (Gedalof), the arbitrator considered several grievances that arose from the transition of a large number of school Board employees to working from their homes during the pandemic. The union grieved that as a result of this transition, affected employees incurred a variety of out-of-pocket expenses that the Board ought to reimburse. Those costs ranged from office supplies and furniture to technology and to increased telephone, internet and utility expenses along with the cost of maintaining personal space from which to work.
The employer relied on a Reimbursement Policy that it issued at the outset of the Pandemic. That policy provided in part
Learning supplies or courier costs incurred after April 16, 2020 will not be reimbursed.
Purchases of office supplies or computer accessories that are essential to staff’s remote work arrangement will need to be reviewed on a case-by-case basis to determine eligibility for reimbursement. Staff must request pre-approval from their supervisory officer before making the purchases.
The union’s central argument was that the employer had improperly passed on its operational costs to employees.
Arbitrator Gedalof stated that the starting place in assessing the union’s claim to a monetary entitlement on behalf of its members must be the collective agreement, It was silent on such reimbursements:
In the face of such silence, the [School Board] was required to act reasonably. It was required to exercise its management rights in a manner that was not arbitrary, discriminatory or in bad faith. … In implementing its reimbursement policy, it has met this standard … In the unpecedented circumstances of the pandemic, this approach was not unreasonable. Neither on the evidence before me, do I find that the policy was applied in an unreasonable manner. In all the circumstances … the [School Board] has reasonably exercised its management rights.
In dismissing the grievances, arbitrator Gedalof concluded that “in directing employees to work remotely and in implementing the expense reimbursement policy, the Board did not exercise its management rights in a manner that was arbitrary, discriminatory or in bad faith.
In Peterborough Regional Health Centre, 2021 CanLII 27718 (ON LA) (Wacyk), the union grieved that the employer breached the duty of care that it owed to its employees by failing to take adequate measures to ensure their safety, including failing to follow the precautionary principle. The union then brought a motion asking that the hearing be bifurcated to “minimize the irreparable harm associated with what is often a considerable delay while complex matters are being arbitrated. It assert[ed] that these are exceptional times, giving rise to issues involving the life and health of [its] members, and therefore warranting the consideration of novel procedural measures.
Arbitrator Wacyk stated:
This motion for “bifurcation” is primarily a request for the ordering of proceedings based on urgency. The contagiousness of the variants heightens that urgency. As there is no dispute that N95 respirators are a key line of defence, I am prepared to hear and determine that issue first. The potential breadth of the grievance requires such a case management approach in order to be fair, practical and expeditious.
… I find that in this instance, the integrity of the arbitration process is best served by putting into place procedures which assist the parties in reaching a timely resolution of one of the more critical elements of this urgent dispute, rather than leaving the resolution of all elements to some future unknown date.
Nor do I see proceeding first with the issue of access to N95 respirators to compromise considerations of fairness, practicality and economy of time. To the contrary, requiring the parties to expend the resources necessary to prepare for all possible elements of this grievance at the same time would, in my view, be far more resource intensive and ultimately less efficient.
The motion to bifurcate was granted. Similarly, in Health Sciences North, 2021 CanLII 35430 (ON LA) (Johnston), arbitrator Johnston considered a grievance alleging that the Hospital had failed to follow the precautionary principle which posits that there need not be scientific certainty before an employer is obliged to take steps to protect the health and safety of workers. He stated that the precautionary principle is incorporated into Article 6.05 of the collective agreement and is a principle that flows from the obligations set out under the Occupational Health and Safety Act of Ontario. [The specific provisions of the legislation are set forth in para. 35 of the decision.]
It is clear on the face of the grievance that the issues raised involve an allegation that the Hospital has failed to take every precaution reasonable to protect the health and safety of [its] members. The grievance seeks as one of its remedies that the [union’s members] are provided with appropriate PPE for airborne risks including the use of N95 masks.
The arbitrator agreed to grant the union’s request to bifurcate the hearing so as to deal with the scientific question at the outset. In that regard, the union had asserted that the evidence on the scientific question would demonstrate that aerosol and asymptomatic transmission are the main modes of transmission for the COVID virus and that N95 respirators are the only effective protection against aerosol transmission.
5. The four Brown and Beatty categories that serve as a lens to the arbitrability of disability claims can accommodate an Administrative Services Only (“ASO”) plan, i.e. one where the employer retains a third-party to administer a self-insured plan.
In GP Northwoods LP, 2021 CanLII 26559 (ON LA) (Goodfellow), the union filed grievances in which it alleged that the employer’s benefits administrator had failed to properly administer several employee benefit claims. The employer filed a preliminary objection to the arbitrability of the grievances. The decision reviews the four Brown and Beatty categories that impact on the arbitrability of disability claims, and in this decision considered whether the iaaues differ where the employer’s plan is an ASO (Administratve Services Only) plan, i.e. that is one that is administered by a third-party administrator, more often an insurer, with the employer retaining responsibility for the cost of all benefits that are paid.
… As the typology has come to be understood and applied in the benefits context, what matters to the possible application of category three is not just the presence of a Plan but the presence of a Plan of Insurance. There is no such Plan here. The WI benefit is “self-insured.” The Company is responsible for paying the claims. It does not pay premiums to a third party to “commute its risk”. The Company bears the full risk. Sun Life [the plan administrator] simply administers the Plan on the Company’s behalf.
Applying the Brown and Beatty typology, the arbitrator concluded that the parties were dealing with a Brown and Beatty category two, or more properly, the so-called “hybrid” of categories two and three: a collective agreement that not only requires the Company to provide a benefit plan but that specifies the benefits to be provided.
Arbitrator Goodfellow commented that the absence of a true plan of insurance supports arbitrability. He stated that as an arbitrator, he had “subject matter jurisdiction” and “in personam jurisdiction” over the only party that matters – the Company, including for any conduct of its agent, Sun Life, in administering the Plan. Hiring Sun Life does not limit, restrict or “pass off”the Company’s obligations. They remain those of the Company. In that sense, I agree with the Company that the ASO agreement is simply an arrangement between it and Sun Life. It is not one to which the union and employees are party, and as such, cannot affect their rights: see City of Hamilton …”
In footnote 5 of that decision, arbitrator Goodfellow stated that “some arbitrators have been untroubled by the implications of a third-party insurer that cannot be made party to the proceedings or subject to an arbitral order … It is the employer that is bound by the collective agreement and by the actions of its agents in that respect, not the agents themselves. It is the employer, not the bargaining unit employee, which must pursue any claims it has against such an agent in the courts.” While it would appear that arbitrator Goodfellow is correct at law, several arbitrators who have commented on the issue in terms of assessing the approach to be taken have suggested that the employee’s remedy must be found through a court action that is initiated by the aggrieved employee.
6. A grievance alleging than an employee was unable to work because of his medical condition was resolved, at least temporarily, by having the grievance held in abeyance pending a psychiatric assessment of the employee and a subsequent discussion between the parties.
In Greater Essex County School Board, 2021 CanLII 23353 (ON LA) (Burkett), an employee of 22 years had grieved that he had been subjected to discrimination and harassment. The employer contended that the medical information that had been provided was insufficient to justify a return to work. During the course of mediation, it was agreed that the grieving employee would undergo a psychiatric assessment, with the focus of that assessment being whether the employee was capable of working in any capacity under supervision. The pending grievances were to be held in abeyance pending the psychiatric assessment and the subsequent discussion between the parties.