llness and Absenteeism.com - November 2017 Newsletter
In this edition you find:
In this edition you find:
A. Featured Case: An arbitrator upheld the termination of an employee for possession of medical marijuana. The termination was sustained on the grounds that the employee, in concealing his use, deprived the employer of the opportunity to obtain a medical or other expert opinion to assess the work that the employee could safely perform.
In Lower Churchill Transmission Construction Employers' Association Inc., 2016 CanLII 33981 (NL LA) (Oakley), the employee was found to have been in possession of marijuana on a project site on the lower Churchill River transmission project. Such possession was contrary to project and worksite rules.
The employee had a prescription for medical marijuana, but he went to some length to avoid disclosing his use to his employer and the operators of the site. He ceased using marijuana for a period of time prior to arriving at the site so as to avoid a positive drug test. In response to a question about use of medications having side effects that the employer should be aware of, the employee left the question blank. He “took deliberate steps to conceal his medical marijuana prescription from [his employer].”
The union had argued that the employer had discriminated against the employee on the basis of disability. “The union [submitted] that a medical marijuana prescription, and the [employee’s] requirement to use marijuana to relieve his symptoms of pain and anxiety, and to allow him to work, amounts to a disability within the meaning of the Human Rights Act of Newfoundland.”
The arbitrator stated:
The refusal to allow a person to work, on the grounds of using medical marijuana, may be considered prima facie discrimination on grounds of disability contrary to section 14(1) of the Human Rights Act. However, subsection 14(2) of the Act states that subsection 14(1) does not apply to a preference based on [a] good faith occupational qualification.
The arbitrator then considered whether the employer (the “contractor”) and the Contractors’ Association had met the tests set forth by the Supreme Court of Canada in Meiorin, 1999 CanLII 652 (SCC):
The Meiorin case describes a three step approach to determine whether an employer has established a good faith occupational qualification. I find that the Contractor and the Association have met the first two tests in Meiorin in the implementation of the [Lower Churchill Project (LCP]] Standard, Canadian Model and the [contractor’s] handbook, namely (1) the policies are rationally connected to the safety sensitive nature of the job, and (2) the policies were adopted in the belief they were necessary to achieve the purpose of safety in the workplace. The third test in Meiorin is whether the policies allow for accommodation of an employee without imposing undue hardship on the employer. The policies do not preclude accommodation. Accommodation may be assessed on a case by case basis …The Contractor has not refused to consider accommodation for anyone who is a medical marijuana user.
The arbitrator concluded that the standards that were imposed constituted a good faith occupational qualification within the meaning of the Human Rights Act. As a result, the discipline imposed for a violation of the LCP standard, i.e. the project worksite standard, is not a violation of the Human Rights Act.
The arbitrator upheld the employee’s termination on the grounds of his non-disclosure:
In this case, because the [employee] failed to disclose his medical marijuana use, the Contactor did not have an opportunity to obtain a medical opinion or other expert opinion to assess the issue of what work the [employee] could safely perform …
In summary, I find that the [employee] violated the LCP (the project work site) Standard, the Canadian Model and the [employer’s] Handbook by his failure to disclose his medical marijuana use prior to commencing work on the Lower Churchill Project, and by his possession of marijuana at the camp. The violation of [these standards] are violations of a safety absolute.
Given the absence of any mitigating circumstances, the employer had just cause to terminate the employee’s employment.
In upholding the termination, the arbitrator distinguished this case from that of City of Calgary, 2015 CanLII 61756 (AB GAA) on several grounds, primary of which was that there was no issue of non-disclosure in the Calgary case. He stated that in this case, because of the employee’s failure to disclose his medical marijuana use, his employer “did not have an opportunity to obtain a medical opinion or other expert opinion to assess the issue of what work the [employee] could safely perform.”
The decision is helpful in that it sets forth the governing legislation/regulations along with the the expert evidence that was lead regarding the medical effects of marijuana.
The Canadian Model referenced in the decision is more fully described as the Canadian Model for Providing a Safe Workplace. It establishes “a minimum industry standard for a safe workplace [and] is part of an overall approach to employee health and safety. The standard provides a specific policy with respect to alcohol and drugs in the workplace and strives to establish a consistent industry standard.” The Model is a best practice drug and alcohol policy that stakeholders in the Canadian construction industry across Canada can adopt and follow.
As a condition of being on site, employees, contractors and workers had been required to accept the terms of the Model.
The issue of drug and alcohol use is considered in section 15 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
In Maple Leaf Sports and Entertainment, 2015 CanLII 80931 (ON LA) (Jesin), the employee was terminated pursuant to a negotiated attendance policy that provided that an employee’s employment would be deemed to be terminated where the employee was absent for more than 10% of her shifts. Much of the absence was attributable to the employee having obtained a full-time position elsewhere that interfered with her part time employment.
The union sought to have the employee accommodated by having the employer give her a later start time. The employer refused. The arbitrator concluded that the employer was not obligated to accommodate the employee:
Nothing in the collective agreement requires the Employer to accommodate an employee’s outside interests or to accommodate an employee’s other employment. It is clear that in this case the [employee] newly acquired full time employment. In these circumstances the Employer was justified in applying its attendance policy and terminating the [employee’s] employment.
The issue of accommodation is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
2. An employee was found to have breached her duty of honesty and fidelity to her employer when she ignored her employer’s request to provide medical evidence to substantiate her alleged inability to work.
In Sobeys West, 2016 CanLII 96060 (BC LA) (Peltz), the employee was a full-time Safeways’ senior cashier who had decided to open a small ethnic restaurant in a nearby location. She advised the employer of her plans and made arrangements to reduce her work commitments with her employer. She requested some vacation to facilitate the opening but that could not be arranged. The morning after the opening, the employee called in sick and did not work that day or on her next three scheduled shifts.
The employer requested that she provide a medical authorization. The first note that she provided stated that her absence was due to “medical reasons.’ A more detailed note was requested. That second note stated that the employee had “symptoms of asthma which had been aggravated by anxiety.”
The employee performed limited supervisory and helping tasks while at her restaurant. She maintained that she was unable to perform her duties as a cashier, partly because of an issue with her voice, and that she was legitimately absent from her employment. The employee, who had a clear disciplinary record and was said to often exceed expectations, had worked for the employer for 20 years. She was terminated for having damaged the employer-employee trust relationship beyond recovery.
The arbitrator ultimately found that the evidence as a whole did not support the conclusion that the employee planned to take an illicit sick leave. He stated that in coming to that assessment, he was “bound to take into account the fact that the objective evidence [verified] a real medical condition … it suffices here to say that the evidence establishes that the [employee] was not ‘faking illness’ …
The arbitrator commented that the employee “provided light assistance but did not actually work in the restaurant in the way a regular employee or family member would have done. There was no ongoing need to use her voice. She was able to rest frequently or run to the bathroom. There was no obligation to stay for an eight hour shift. She was there by choice and could leave at any time. In sum, the [employee’s] restaurant activity was materially different than her cashier job function and did not indicate that she would have been fit to work at the Store.”
Both parties agreed “that even where an employee establishes that she had a valid sick leave claim, she may be subject to discipline for dishonesty or misconduct during the investigation process.” The arbitrator rejected the union’s suggestion that the employee had been fully cooperative and honest in dealing with management once the investigation began, and instead concluded that the employee had displayed culpable conduct that gave just cause for discipline. He stated that “an employer is entitled to receive a full, honest and satisfactory explanation from an employee when there are reasonable grounds for suspicion.” [Canada Post Corporation, [2012 C.L.A.D. No. 125 (Peltz)].
In that regard, the employer had requested that the employee have her doctor countersign receipt of the employer’s letter seeking an answer to the issue of how the employee could be unfit to work at the employer’s store but still able to work at her new restaurant. A further medical report was to be provided within two weeks. The deadline was not met, and the employee subsequently denied that she knew that she was to submit a further note. The arbitrator commented that the employee “breached her duty of honesty and fidelity when she decided to ignore the employer’s request.”
The failure to provide the letter was not just a matter of disobeying an employer directive. The letter was necessary to ensure that the Doctor knew the gravity of the situation facing his patient and the urgent necessity of explaining the apparent contradiction: how could the [employee] be unfit for work at the Store but able to work in her restaurant?
The arbitrator stated that by having gone to her restaurant and raised the employer’s strong suspicions, the employee then “failed to cooperate in the investigation, hoping it would all go away or result in no more than a slap on the wrist. By doing so, she veered into culpable misconduct.”
In finding that termination was excessive in the circumstances, the arbitrator stated:
The principal allegation of a fraudulent sick leave claim has not been upheld. The [employee] was medically unable to perform work for the employer. Nevertheless, dishonesty in the investigation process is also a serious matter and may justify termination. It is important that a proper deterrent message is sent, especially in the present case where other employees were aware of the suspicious circumstances from the outset.
The employee was considered to have excellent rehabilitative potential. A four month unpaid suspension was substituted for the termination.
The obligation of an employer to provide medical evidence to substantiate her inability to work is considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.
In Ontario (Economic Development, Employment and Infrastructure), 2016 CanLII 51073 (ON GSB) (Dissanayake), the employer was found to have made a bad faith decision to surplus an employee who it considered to be problematic. It was also found to have discriminated against and failed to fulfil its obligation to accommodate the employee.
The treatment of the employee could be characterized as callous and without regard to the health issues that he was suffering. “The surplussing itself was a sham.” The senior manager “acted out of anger and antipathy” and made the decision to surplus with no consultation or input from the employee’s direct supervisor. “He took the unusual step of personally serving the surplus notice [on the employee] and immediately escorting him out of the office.” Portions of the Manager’s testimony were found to lack credibility.
The adjudicator awarded compensatory damages of $8000 in lieu of reinstatement, general damages of $20,000 for infringement of the employee’s right to be free from discrimination under the Human Rights Code and the collective agreement and $25,000 in damages for injury to dignity, feelings and self-respect. A claim for punitive damages was rejected.
Issues related to recovery of damages for an employer’s failure to accommodate are considered in section 14:700 of the Illness and Absenteeism manual and its supplement..
4. An employer whose manager improperly and knowingly breached an employee’s privacy by disclosing private medical information to other employees was assessed $25,000 in general damages. The arbitrator also directed that the employee be provided a harassment free workplace and that the employer limit any interaction between the employee and the manager, including that the manager not be involved in any investigations or training involving the employee, and that the employee be entitled to have a union representative present in any meetings with the manager. The employer was also ordered to remind all managers and employees “that private personal information (including medical information and information obtained in the grievance and arbitration process) must be kept private and not be disclosed.”
In Canadian Pacific Railway Company, 2016 CanLII 25247 (ON LA) (Stout), the union alleged that the employer’s Trainmaster had improperly (and knowingly) breached the employee’s privacy by disclosing private medical information to other employees when he informed them that the employee, a conductor, had just told him that he suffered from colour blindness.
It was accepted that the employee subsequently suffered mental distress and was absent on a medical leave for approximately 2 ½ months. His distress arose from concerns that the disclosure would affect the willingness of fellow employees to work with him and would cause them to lose confidence in his abilities as a conductor and locomotive engineer.
Arbitrator Stout concluded that the disclosure was both a breach of the employee’s privacy rights and a violation of his right to be free of discrimination and harassment in the workplace. The Trainmaster had been upset with a recent arbitral award that lifted the restrictions that had been imposed on the employee. That arbitrator found that although the employee had a vision-related disability, he was not colour blind and was able to safely perform his duties as a conductor or locomotive engineer. The Trainmaster had been present at the arbitration and knew that the award had not referred to the employee by name in order to protect his privacy. Arbitrator Stout found that the Trainmaster’s conduct was retaliatory and had been intended to punish the employee for exercising his rights under the collective agreement, the Canada Labour Code and the Canada Human Rights Act. The conduct was found to be flagrant and intentional with a view to causing the employee to suffer. It was a foreseeable consequence that the employee would suffer indignity and distress.
The arbitrator found that the employer (i) violated the collective agreement’s implied obligation to treat employees in good faith and without discrimination; (ii) that it violated sections 94(3) and 124 of the Canada Labour Code; (iii) that it failed to provide the employee with a workplace free of discrimination and harassment in violation of sections 7(b), 14(1)(c) and 14.1 of the Canada Human Rights Act; and (iv) it violated the employee’s rights under the Personal Information Protection and Electronic Documents Act.
The arbitrator, after having first considered the wide remedial authority of arbitrators to craft a remedy, ordered that the employer pay the employee $25,000 as general damages and that the employee be compensated for his lost wages. The arbitrator declined to award punitive damages, stating that:
The Company’s conduct was not so shockingly harsh, vindictive, reprehensible and malicious as to warrant such damages. Punitive damages in labour arbitration should be reserved for the most extreme circumstances where no other remedy would suffice. Moreover, [the other damages and remedies that I have awarded are] sufficient to both denounce the conduct and deter future misconduct.
The arbitrator also directed that the employee be provided a harassment free workplace; that the employer limit any interaction between the employee and the Trainmaster, including that the Trainmaster not be involved in any investigations or training involving the employee; and that the employee be entitled to have a union representative present in any meetings with the Trainmaster. The employer was also ordered to remind all managers and employees “that private personal information (including medical information and information obtained in the grievance and arbitration process) must be kept private and not be disclosed.”
Issues related to privacy, to discrimination and to harassment are considered in Chapters 12 and 14 of the Illness and Absenteeism manual and its supplement.
5. Reinstatement was not considered a viable option for a disabled employee whose prospects for a successful return to work were poor. The award of damages reflected that the employee, by virtue of some of her own actions and decisions, eroded the employment security which would normally have been provided by the collective agreement.
In Winnipeg (City), 2016 CanLII 85345 (MB LA) (Graham), the arbitrator issued this supplementary award assessing damages payable to an employee who had been improperly terminated. In an earlier decision, the arbitrator found that the employer had acted unfairly and unreasonably when it terminated the employee rather than follow through with the accommodation process that it had commenced approximately one year earlier.
The employee suffered from “a major depression in the context of borderline personality traits with elements of Attention Deficit Disorder (ADD) and Attention Deficit and Hyperactivity Disorder (ADHD) and anxiety also likely being present.”
Reinstatement had been denied, with the arbitrator directing that the parties attempt to arrive at a resolution of the damages that were to be payable. Given their inability to resolve this issue, a further hearing was convened to establish the employee’s entitlement.
The arbitrator commented that one of the employer’s primary reasons for resisting reinstatement of the employee was “her extreme and incendiary e-mails to senior City administrators who were outside of her reporting line of authority. Those e-mails contained personal attacks, accusatory language and reckless and ill-considered threats, all of which were destructive of [her] employment relationship with the City.
… In addition, another reason for the [employee] not being reinstated to her employment was that her prospects for a successful return to work were poor, as a result of her reluctance to accept that borderline personality traits were a major element in her presentation. [Her] reluctance to acknowledge and address her borderline personality traits meant that she was not addressing her problems in the most effective way possible and that she was arguably not obtaining the type of treatment she required.”
The arbitrator commented that his award of damages “must reflect that the [employee], by virtue of some of her own actions and decisions, eroded the employment security which would normally have been provided by the collective agreement.”
Both parties had referred the arbitrator to Hay River Health (2010), 201 L.A.C. (4th) 345 (and cases that followed it), where the arbitrator adopted a four step approach to assessing damages in lieu of reinstatement. This involved (1) first calculating the maximum income the employee could have received if she had not been wrongfully dismissed, then (2) adding to that amount the value of the “top up” benefits and then (3) reducing that sum to reflect the various contingencies which might have prevented the employee from continuing in employment, and finally (4) further reducing the sum to reflect the employee’s obligations to mitigate her damages.
Arbitrator Graham stated that he did not have sufficient evidence with respect to potential contingencies to adopt the “Hay River” approach. As an alternative, he relied on the following “damage assessment” principles that he had distilled from the arbitral authorities where damages were awarded in lieu of reinstatement:
1. The purpose of … compensation in lieu of reinstatement is to compensate the [employee] for losing the benefits, rights and protections she formerly enjoyed under the collective agreement. Therefore the fundamental nature of the exercise is to estimate … the monetary value of the benefits, rights and protections under the collective agreement which the [employee] has lost, rather than to assess damages in the manner typically utilized in a civil action for wrongful dismissal.
2. When assessing the rights, benefits and protections under the collective agreement, … the benefits fall into at least two distinct categories, [with those being] “fringe or collateral benefits (such as group insurance, death benefits, vision benefits and most significantly pension benefits) and benefits in the form of rights and protections, such as seniority … and the right to be protected against fair and arbitrary dismissal. Many of the arbitral authorities … feature a “top up” … in addition to the global award for damages in lieu of reinstatement … A percentage “top up” is appropriate as a means of compensating for the loss of fringe or collateral benefits.”
3 [Adopting NAV Canada (2004), 131 L.A.C. (4th) 429 (Kuttner) and the cases on which it relied], the global award for damages in lieu of reinstatement should not be bifurcated into two distinct parts, namely the period between the date of the termination and the … initial award, and the period following the award …
4. An assessment of the [employee’s] loss of the benefits she formerly enjoyed under the collective agreement should involve … consideration of [her] prior disciplinary record as a factor affecting her security of employment. As noted earlier …, she bears some responsibility for not being reinstated [in that her behaviour] demonstrated that a return to work would not likely be successful. [That] must be reflected in the damage assessment.
5. With respect to mitigation …, I agree and adopt the reasoning of the Saskatchewan Court of Appeal in Saskatchewan Centre of the Arts, 2008 SKCA 136 (CanLII), [where the Court reiterated the principle that any income earned by the employee must be taken into account to the extent that it alters the actual loss.]
6. … Compensating the [employee] for losing the benefits, rights and protections under the collective agreement means that [she] is entitled to the severance payment that she would have received … [Using the collective agreement formula, she] is entitled to $2,472.45 in addition to the global award for damages in lieu of reinstatement.
7. [She is also entitled] to severance under the Employment Standards Code … [with that being equivalent to a notice period of 6 weeks, or a payment of $4,944.78 in lieu of notice].
Arbitrator Graham also awarded the sum of $50,000 in lieu of reinstatement as compensation for “the loss of the substantial benefits, rights and protections [the employee] enjoyed under the collective agreement …” This was said to be based on a comparison of other similar awards and amounted to more than one month for every year of service. The benefit “top-up” was established at 20% of the global award of $50,000. Monies earned in mitigation were to be deducted from the amounts awarded
In addition, the arbitrator awarded $50,000 “as general damages for the City’s violation of the [employee’s] human rights, being specifically the City’s failure to accommodate or to continue to accommodate the [employee’s] disabilities”. He also awarded $15,000 as damages for mental distress, but he declined to award aggravated or punitive damages, primarily because the other heads of damages awarded were sufficient “to accomplish the objectives of retribution, deterrence and denunciation.”
Issues related to recovery of damages for an employer’s failure to accommodate is considered in section 14:700 of the Illness and Absenteeism manual and its supplement.
In University Health Network, 2016 CanLII 60675 (ON LA) (McNamee), the employee suffered from fibromyalgia and related sleep disorders. As a full-time nurse, she normally rotated between four weeks of day shift and two weeks of night shift in each six week period. She alleged that the employer had discriminated against her when it refused to accommodate her by permitting her to work steady day shifts.
The arbitrator stated that the onus was on the union to first establish a prima facie case of discrimination by establishing that the requirement to work rotating shifts had an adverse impact on the employee because of her disability. The arbitrator concluded that the medical evidence established that the fibromyalgia resulted in a sleep disorder that adversely impacted the employee’s ability to do her job.
The arbitrator found however that the evidence fell short of establishing that the only possible accommodation was the provision of a steady day shift. In coming to that conclusion, the arbitrator preferred the evidence of the employer’s medical expert who opined that “it made no real difference as to whether the [employee] had a consistent night shift work schedule or a consistent day shift work schedule.” The employee had testified that her sleep disorder was not a factor and that she was able to function normally when she took sleeping pills. It was her evidence that she wanted to be able to function without them. While the arbitrator expressed sympathy for her desire to avoid such medication, he stated there was no evidence that the sleeping pills were deleterious to her health. He also stated that the accommodation she sought would impose an additional burden on her colleagues to work additional night shifts; and that she ought to take reasonable measures (sleeping pills) to avoid the need for accommodation.
The grievance was dismissed, with the arbitrator stating:
The law is clear that an employee is not entitled to insist upon the accommodation which s/he prefers and instead must be content with an accommodation which meets the medical circumstances of his/her case. I am satisfied that the [employee] can be accommodated, if she desires accommodation, with a steady night shift work schedule, and that the hospital was justified in its refusal to provide her with a permanent day shift schedule.
The issue of accommodation is considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
In Lakeridge Health Corporation, 2016 CanLII 36790 (ON LA) (Harris), the employer requested an order that the employee’s doctor produce records that would clarify the services that he provided to her when preparing two Attending Physician’s Reports. More specifically, it sought his clinical notes and records of his communications with the employee during a two month period involving his assessment of the employee with respect to being totally disabled. Its focus was on documents that disclosed the particulars of the doctor/patient communications leading to the preparation of the reports.
The issue of production of medical records is considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.
In Videotron S.E.N.C., 2017 CHRT 11 (CanLII) (Gaudreault), the adjudicator ordered that the employer disclose the contact information of those of its’ employees who had participated in a job competition with an employee who was alleging that he had been unsuccessful because of his age.
The issue of production of particulars is considered in section 10 of the Illness and Absenteeism manual and its supplement.