llness and Absenteeism.com - November 2013 Newsletter

In this edition you will find...


Feature Case: Arguably relevant documents that contain an employee’s personal health information or that form part of her workers’ compensation board file are generally subject to production at the request of the employer

In Tinnerman Palnut Engineered Products (Canada) Corp., 2013 HRTO 765 (CanLII) (Pickel), the employer sought production of documents that the employee had refused to produce on the grounds that they contained some of her personal health information or because they formed part of her Workplace Safety and Insurance Board (WSIB) file.

 Although the employer possessed a copy of the employee’s WSIB file, it contended that it would be in violation of ss. 59(6) and 181(3) of the Workplace Safety and Insurance Act of Ontario if it disclosed any documents from that file, even with her consent or in compliance with an order from the Tribunal. Those sections provide

59(6) The employer and the employer’s representatives shall not disclose any health information obtained from the Board except in a form calculated to prevent the information from being identified with a particular worker or case.

181(3) No employer or employer’s representative shall disclose health information received from a health care practitioner, hospital, health facility or any other person or organization about a worker who has made a claim for benefits unless specifically permitted by the Act.

The adjudicator concluded that those sections did not bar an employer from disclosing such documents with the employee’s consent or by order of the Tribunal:

This case presents a variation on the typical scenario that arises before the Tribunal. Typically, in cases where the issue has arisen, a respondent has requested the applicant’s consent to disclose documents contained in his or her WSIB file for the purposes of the Tribunal’s proceedings and the applicant refuses to consent. In such cases, the Tribunal frequently directs the applicant to provide consent to the production of all documents from his or her WSIB file that are identified as arguably relevant to the issues before the Tribunal … In these decisions, the Tribunal has found that ss. 59(6) and s. 181(3) of the WSIA do not bar an employer from disclosing documents from an employee’s WSIB file with the employee’s consent or by order of the Tribunal. I agree with this interpretation of these provisions as they are intended to preserve an employee’s interest in the confidentiality of the documents from his or her WSIB file. These provisions do not bar the disclosure of documents from the file where an employee waives their confidentiality interests for the purposes of a proceeding by consenting to the disclosure of documents from their WSIB file in that proceeding.

The adjudicator ordered the employee to provide the employer’s counsel with her written consent for disclosure of the sought-after documents. The employer was directed to provide copies of the documents to the employee and file copies with the Tribunal.

The employer had also filed a request seeking production of the employee’s entire WSIB file along with all of the employee’s medical records in the possession of a named doctor, all specialist doctors and all hospitals attended by the employee.

The adjudicator directed that all documents in the employee’s WSIB file that were not in the employer’s possession (that is those that post-dated the employee’s termination) were arguably relevant and should also be produced.

On the matter of disclosure of medical records, the employee had disclosed those which she considered to be arguably relevant. The employer submitted that the employee should not be “judge and jury” to decide what information is arguably relevant. The employer also submitted that “even if all the requested information may not appear to be arguably relevant to a lay person, ‘a medical expert may be able to determine that [the applicant’s] previous medical history is arguably relevant.’”

The adjudicator stated:

Balancing the applicant’s right to maintain control over her medical information against the requirements of a fair, just and expeditious disposition of this matter, including consideration of the respondents’ right to answer the allegations, I find that medical information related to the injuries for which the applicant filed a WSIB claim and her ability to perform her work is arguably relevant and should be produced.

Workplace Safety and Insurance Board documents purporting to record employee comments to Board staff were found to be admissible in Toronto Community Housing Corporation, 2012 CanLII 85556 (ON LA) (Snow). Given that “section 180 of the Workplace Safety and Insurance Act 1997 [stipulates] that neither party can compel a WSIB employee to testify, the documents could not be introduced in the usual way of a witness testifying that he or she had created the document. These documents were simply documents that were in the grievor’s WSIB file when the file was made available for perusal.” The notes were found to be admissible pursuant to s. 35 of the Evidence Act in that they were business records that were made in the usual course of business and that it was the usual and ordinary course of the business to make such records at the time or soon thereafter.

Statutory provisions addressing the production and use of workers’ compensation documents are considered in section 10:302 of the Illness and Absenteeism manual, commencing at page 300 of the manual.



Recent Decisions of General Interest

1. A non-disciplinary termination of an employee suffering from bipolar disorder and hypothyroidism was upheld where it was clear that the employee could not return to work in the foreseeable future.

In Treasury Board (Canadian Forces Grievance Board), 2012 PSLRB 102 (CanLII) (Paquet), the employee was terminated for non-culpable absenteeism after unsuccessfully attempting to return to work following a two year absence on sick leave. In the three years prior to the termination, three gradual return to work plans had been established in accordance with the recommendations of the employee`s physicians. None were successful.

At the time of her termination, the employee was suffering from a bipolar disorder and hypothyroidism. It was agreed that she was disabled and that the employer was obligated to accommodate the employee`s disabilities to the point of undue hardship. The adjudicator relied on the decision of the Supreme Court of Canada in Hydro-Quebec for the proposition that where “the employee cannot work for the reasonably forseeable future, it establishes undue hardship. When the employee cannot meet his or her obligations for the foreseeable future, it is not the employer`s responsibility to accommodate the employee.”

The adjudicator distinguished the facts here from other cases where the employer failed to properly consider the duty to accommodate at the time of termination. Here, “the employer had enough information to conclude that [the employee] would not return to work in the foreseeable future.”

The grievance was dismissed.

Termination for innocent absenteeism and the need to consider accommodation of a disabled employee prior to effecting such a termination are considered in section 17:302 of the Illness and Absenteeism Manual, commencing at page 851 of the manual.

2. An employer’s request for medical justification of a one day absence was considered reasonable where the employee had worked an overtime shift less than 24 hours prior to calling in sick.

In Kubota Metal Corporation Fahramet Division, 2012 CanLII 65155 (ON LA) (Trachuk),the issue was whether the employer had a reasonable basis to require an employee to supply a medical note to support a one-day absence. In finding that it did, the arbitrator considered that the employee had worked an overtime shift less than 24 hours prior to his “sick call”, he had not indicated any health issues when he worked that shift, and the absence occurred on an evening shift on which Halloween fell.

On the issue of overtime, the arbitrator stated:

Companies are sensitive to the possibility of employees using overtime, especially double time, to finance absences from work.

The arbitrator made it clear that she was merely determining the reasonableness of the request rather than whether the employee`s absence was legitimate.

The case did not consider the issue of corroborative evidence.

The issue of the reasonableness of a request for a medical certificate is considered in sections 7:301 and 7:302 (a) of the Illness and Absenteeism Manual, commencing at page 116 of the manual.

3. Termination pursuant to a deemed termination clause (after an absence of three days) was upheld where the employee failed to return to work for two months after his disability benefits had ceased.

In Meyers Transport Ltd. (2012), 226 L.A.C. (4th) 100 (Martin), the employee had been absent from work due to anxiety issues. He was advised by the insurer that his disability benefits would cease because he was no longer totally unable to perform his own occupation. The employee did not communicate with the employer to discuss the impact of the letter on his employment status.

Just over two months later, the employee’s physician cleared him to return to work. The employer then advised the employee that he could not return until he provided satisfactory justification for his intervening absence. Although the employee continued to be under medical care, he failed to provide any medical rationale for that period of absence. That caused the employer to terminate the employee’s employment. In doing so, it relied on a collective agreement provision that mandated loss of seniority and termination where the employee failed to report to work or contact the employer for three consecutive days on which the employee would normally be expected to report for duty.

The arbitrator commented that the termination amounted to a non-disciplinary decision that flowed from the terms of the collective agreement. The union therefore bore the burden of establishing that the employer either misapplied the provision or acted arbitrarily or abusively when it chose to end the employment.

The arbitrator summarized the generally recognized purpose and approach to this type of a contractual provision:

Parties to a collective agreement are so aware of the importance for employees to notify of their absences that they often choose to include in their agreements stipulations on the consequences of a failure to do so in what is often referred to as deemed termination clauses. A review, albeit cursive, of arbitral decisions dealing with these clauses suggest that a deemed termination is generally considered non-disciplinary. They are construed strictly and narrowly because of their severe consequences, but must have a real meaning despite their unsparing consequences in a particular case. They put an onus on an employee’s shoulder to inform his employer of his absence, failing which he may lose his employment. Finally, if the conditions set out in the clause are met, an arbitrator cannot relieve against its application.

The medical records that were filed at arbitration failed to establish an inability or incapacity to work. The arbitrator concluded that the evidence did not convince him that the employee’s medical condition prevented him from working or that there were valid reasons for not communicating during the intervening period. The employer had not acted arbitrarily or abusively. The grievance was dismissed.

The issue of deemed termination clauses is considered in section 16:300 of the Illness and Absenteeism Manual, commencing at page 796 of the manual.

4. The termination of a disabled employee was upheld where the employee was unable to establish that the disability was a factor in the employer’s decision to terminate her employment.

In Bleszynski (No. 2), 2013 BCHRT 205 (CanLII) (Tyshynski), the complainant alleged that the doctor she worked for terminated her employment due to a physical disability, namely an ankle and knee injury. For its part, the employer contended that the employee’s employment had been terminated solely because of an ongoing personality conflict between the employee and other staff, including the doctor.

The complaint was dismissed on the basis that the employee did not establish a prima facie case of discrimination, for she had not established that her disability was a factor in her employer’s decision to terminate her employment.

In addressing the existence of a disability, the adjudicator stated:

The term “disability” is not defined in the [British Columbia] Code. The concept of physical disability, for human rights purposes, has generally been held to involve a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: Boyce v. New Westminster (City), [1994] B.C.C.H.R.D. No. 33, para. 50

The adjudicator stated that while the employee’s knee and ankle injury interfered with the normal functions of life, the evidence did not establish that her disability interfered with her functioning at the office. Although the employee was suffering from a disability, no evidence had been tendered to establish that the termination was due to circumstances other than a personality conflict between the employee and others, and in particular, the employee and the doctor:

… There is no nexus linking [the employee’s] disability to [the doctor’s] decision to terminate her employment. I find that the employee’s employment was terminated solely for a non-discriminatory reason. Therefore, [the employee] has not established a prima facie case of discrimination. Her complaint is dismissed.

The issue of defining a disability is considered in section 14:202 of the Illness and Absenteeism Manual, while the issue of nexus as it relates to establishing a prima facie case is considered in section 14:410 of that manual.

5. An employer was not required to pay vacation pay to a disabled employee where vacation pay was calculated on the basis of time worked.

In District of L and another, 2013 BCHRT 233 (Can LII) (McCreary), the employee claimed that the employer’s actions were discriminatory in that the employer failed to grant him vacation entitlement while he was on a medical leave due to a disability. The employer’s position was that vacation entitlement was an earned benefit and that all employees, whether disabled or not, did not accrue vacation for time not worked.

In dismissing the grievance, the arbitrator relied on Orillia Soldiers Memorial Hospital [1999] and the cases which followed it. There the Ontario Court of Appeal distinguished between compensation provided in exchange for work, and compensation provided for other purposes. The Court stated that “it is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not …”

The issue of extending monetary or benefit protection to disabled employees is considered in section 14:623 of the Illness and Absenteeism Manual, commencing at page 689 of the manual.