llness and Absenteeism.com - December 2019 Newsletter
In this edition you will find:
A. Featured Case: All parties were found to have been responsible for a significant delay in effecting an employee’s accommodation. The fact that the employer did not have an accommodation policy setting forth a structure or protocol governing the search for accommodation was found to have been a factor that contributed to the length of time that was taken. The employee’s claim for damages attributable to the delay was dismissed. [Click here]
B. Recent Decisions of General Interest
1. A University was justified in imposing a behavioural contract on a student who suffered from a number of complex mental illnesses, including post-traumatic stress and severe anxiety disorders. The contract, which constituted prima facie discrimination on its face, was justified on the basis that it met the three-pronged defence set forth by the Supreme Court of Canada in Meiorin. [Click here]
2. A collective agreement provision that reduced employee health and welfare benefits at age 65 did not violate the provisions of the Human Rights Code of British Columbia. The provision had been adopted in good faith and not for the purpose of defeating protected rights. The employer had met its burden to establish that the provision fell within the exceptions set forth in the Code. [Click here]
3. A resignation that was written while the employee was intoxicated was found to be voluntary and valid. It had twice been communicated to the employer, and the employee’s subsequent retraction followed a delay of approximately 10 days. [Click here]
4. An employer’s delay in taking immediate action to terminate a disabled employee who was reluctant to disclose particulars of her disability can be seen as a form of accommodation. [Click here]
A. Featured Case: All parties were found to have been responsible for a significant delay in effecting an employee’s accommodation. The fact that the employer did not have an accommodation policy setting forth a structure or protocol governing the search for accommodation was found to have been a factor that contributed to the length of time that was taken. The employee’s claim for damages attributable to the delay was dismissed.
In Board of Education of School District No. 45 West Vancouver, 2019 CanLII 67544 (BC LA) (Larson), the employee, an Educational Assistant or Teacher Aide, had been injured when her vehicle was rear-ended by a truck. Her resultant injuries imposed significant limitations on both her physical and mental activities. The essence of her grievance was that her employer had taken too long to find her an accommodated position.
The employee sought to recover damages that would not have been incurred had the process been more efficient.
While the employer attempted to find the employee meaningful work, and while it communicated with the union’s business agent from time to time to advise him of the steps being taken, the employer had allegedly failed to involve the business agent in any strategic planning to measure the employee’s “functional capacity to or to map out possible placements”.
The governing principles were not in issue. It was agreed that the search for accommodation is a multi-party process. From the employee’s perspective:
The employee must also act reasonably to accept an appropriate offer of accommodation and this may even involve some level of personal sacrifice. However, an employee should not normally be required to originate a solution.
In reviewing the development of the law of accommodation, the adjudicator considered decisions that dealt with both the procedural and substantive aspects of the duty to accommodate; the extent to which an employer is required to modify or create a new job to achieve an accommodation; the issue of undue hardship, including the requirement that a new or modified position must be meaningful “or productive or contribute to the essential purpose of the workplace”. The adjudicator commented that:
proving undue hardship is a rigorous standard and employers should not apply rules with rigidity. Instead, flexibility and common sense must be used when facilitating a solution … A touchstone of accommodation is collaboration between the employer, the union and the employee. This requires open and frank discussions. In order to establish hardship, the employer must demonstrate that it made genuine bona fide efforts to explore options and alternatives to facilitate the process.
The adjudicator in this case referenced British Columbia Hospital,  BCCAAA No. 287 (Sullivan), where the arbitrator Sullivan held that the delay in effecting an accommodation was unreasonable:
… It did not meet the test of reasonableness even though the search for accommodation had extended over many potential positions and options, because it focused primarily on attempts to find existing jobs without investigating whether something could be done to those jobs to enable [the] employee to perform them.
Arbitrator Sullivan also stated:
Having determined that the [employee] could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted, short of undue hardship to the hospital in order to enable the [employee] to return to work despite her physical limitations. The duty to accommodate obligates the employer to diligently examine the possibility of adapting the work place in order to enable the [employee] to work.
The adjudicator in this case also referenced Canada (Attorney General)  FCA 131, where the Federal Court of Appeal ultimately held that the procedural duty to accommodate does not give rise to a separate remedy if the employer satisfies all three parts of the test for determining whether a prima facie discriminatory standard is a bona fide occupational requirement” as established by the Supreme Court of Canada in Meiorin [1999 CanLII 652 (SCC)].
At a later point in the accommodation process, the Union inquired whether the employer had a formal accommodation policy. It did not, with the employer responding that it worked through each instance of accommodation as it occurred. The adjudicator stated:
… A definitive accommodation policy is an important element to consider, not for the purpose of establishing the principle rules of accommodation but to establish a structure or protocol to follow in such circumstances. Once a policy is properly established the application of it will invariably reduce or eliminate any disputes related to accommodation.
Despite that comment, the adjudicator stated:
However, I am not prepared to find that the failure to adopt a policy constitutes prima facie discrimination”.
The employer and the union had established a joint Support Staff Education and Adjustment Committee that was intended to fund increases in Educational Assistant hours and positions. The Committee had used $198,000 of a $233,000 fund for that purpose. The employer proposed that a portion of the surplus be used to establish a supernumerary position for the employee while the parties continued to work through the accommodation plan. The union objected to having any of the surplus used for that purpose. The adjudicator stated that while it would have required both the employer and the union to agree to use the surplus for that purpose,
it was hardly open for the union to adamantly refuse to consider such a possibility particularly in view of the tripartite duty that reposes on all parties to accommodate disabled employees … to reject the proposal without any further discussion was wrong.
The adjudicator commented that the surplus monies would have been more than enough to fund a full year of an accommodated position and that the union had in the past agreed to use such funds for that same purpose. The adjudicator also commented that the job duties assigned to the employee were entirely within the job requirements of an Educational Assistant, for some of the Educational Assistant assignments within the bargaining unit did not involve physical duties and mental stress.
Another position that fell within the employee’s restrictions was subsequently offered to her but she rejected it because she knew the principal of the school and she thought that it would be too stressful to work with her. There was no evidence introduced to support that concern.
Ultimately, it was agreed that the employee would be placed on the casual list for two days per week with a guaranteed call out and then transition through a gradual return to work in an identified Educational Assistant position until she was working her full four days per week.
The adjudicator directed specific criticism at both the union and the employer. While the employer may have been able to structure a suitable position at an earlier point, it would not have been able to move the employee in the absence of the union’s agreement which had not been forthcoming. The adjudicator also stated:
The role of the union in such cases should not be seen to be [merely] a sounding board for placement suggestions generated by the employer but the union should be involved in the strategic planning of them. There should be a joint accommodation committee that monitors both accommodation planning and implementation. If there is going to be testing, as there was in this case, the parameters of the testing should be agreed to between the parties to ensure the validity and relevance of the testing. In some cases, consideration should be given to [a] functional evaluation through an independent agency.
And on the issue of a procedural breach of the duty to accommodate, the adjudicator stated:
… even if it were the case that the absence of a policy might be seen to constitute a procedural breach of duty it would not give rise to a separate remedy as was held by the Canada (Human Rights Commission) v Canada (Attorney General) case where there is no breach of the substantive duty to accommodate.
The adjudicator considered that the parties acted with considerable dispatch throughout the process and that the time taken was not unreasonable:
While I accept that the [employee] in this case suffered hardship because she was without gainful work, it cannot be laid entirely at the feet of the employer. All the parties bear some responsibility for the time that it took. The notice that the [employee] gave that she was ready to return to work did not recognize the complexity of fitting her back into the workforce and that she bore a considerable part of the responsibility to reach a reasonable accommodation. In the end, the job found for her required the cooperation of everyone which cannot justifiably trigger the damages sought by the union under the circumstances.
The grievance was dismissed.
Decisions regarding the search for accommodation are considered in sections 14:601 to 14:625 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. A University was justified in imposing a behavioural contract on a student who suffered from a number of complex mental illnesses, including post-traumatic stress and severe anxiety disorders. The contract, which constituted prima facie discrimination on its face, was justified on the basis that it met the three-pronged defence set forth by the Supreme Court of Canada in Meiorin.
In Mount Royal University, 2019 AHRC 31 (CanLII) (Gottheil), the Chief of the Commissions and Tribunals upheld the Director’s decision to dismiss the student’s complaint alleging that she had been discriminated against on the ground of mental disability.
The student suffered from a number of complex mental illnesses, including post-traumatic stress disorder and severe anxiety.
In conjunction with the University’s Accessibility Services Office, an accommodation plan was established incorporating the student’s needs. These included access to the professor’s notes, extended time to complete assignments, an alternate exam format, technology supports and out-of-class academic support.
The student sought repeated visits with the University’s Human Resources, Registrar and department offices to discuss policies and procedures. During those visits, she would often demand immediate access to staff and raise issues that had already been answered or for which the office had no authority to address. Her frequent requests for additional time with professors put significant demands on the limited “student access time” that was scheduled for professors.
In the months prior to the imposition/demand that the student execute a behavioural contract, the student, in response to having been advised that she could not immediately be seen by a staff member, threw herself on the service counter and staff had to escort her to a private office in order to manage her disruptive behaviour. That followed an earlier incident where the student had thrown herself on the office floor after having been told that no one was available to see her.
The University then provided the student with a behavioural contract that set forth specific expectations dealing with matters such as contacts with the University’s counselling department and various other operating departments. Sanctions would be imposed if the student failed to sign the behavioural contract. The student responded by filing a complaint alleging that the University had discriminated in the area of goods and services on the ground of mental disability contrary to s. 4 of the Alberta Human Rights Act.
After conducting an apparently thorough investigation, the Human Rights Investigator/Officer who had been appointed to investigate the complaint concluded that the behavioural contract did not infringe the student’s rights under the Human Rights Act. The Director agreed with the Investigator’s recommendation and dismissed the complaint. The student then filed for a Request for Review of the Director’s Decision. The Chief of the Commission and Tribunals (Michael Gottheil) considered the submissions of the parties and reviewed the record of the Director’s decision to dismiss the complaint. He then upheld the Director’s decision dismissing the complaint.
In making that decision, the “Chief” stated that it was certainly arguable that the behavioural contract constituted prima facie discrimination on its face in that it was issued because of the student’s disability and placed restrictions on her that were not placed on other students. He stated however that the inquiry did not end there, for the Supreme Court of Canada in Moore, 2012 SCC 61 (CanLII) had adopted the reasoning in both Meiorin, 1999 CanLII 652 (SCC) and Grismer, 1999 CanLII 646 (SCC), where the courts held that
A respondent may justify a discriminatory policy or rule if it can demonstrate: a) the restriction is rationally connected to a legitimate business purpose, b) that it was adopted in good faith, and c) the purpose could not otherwise be accomplished without incurring undue hardship.
The “Chief” concluded that the information strongly supported the conclusion that the respondent could establish each of these elements at a hearing. He noted that there was no medical or psycho-educational evidence to suggest that any of the adjustments or restrictions imposed through the behavioural contract negatively impacted the student’s ability to learn or to have meaningful access to university because of her disability related needs.
The Director’s decision was upheld, with the complaint being dismissed because there was no reasonable basis in the evidence to proceed to a hearing.
Decisions regarding an employer’s defences to an allegation of discrimination are considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.
2. A collective agreement provision that reduced employee health and welfare benefits at age 65 did not violate the provisions of the Human Rights Code of British Columbia. The provision had been adopted in good faith and not for the purpose of defeating protected rights. The employer had met its burden to establish that the provision fell within the exceptions set forth in the Code.
In Molson Coors Breweries (No. 3), 2019 BCHRT 192 (CanLII) (Cousineau), the employee alleged that a collective agreement provision that reduced health and welfare benefits at age 65 was contrary to the age prohibition that was contained in the British Columbia Human Rights Code.
The employer contended that the reduction of benefits, made on the basis of age, was immune from the charge of discrimination because it arose from the operation of a “bona fide group or insurance plan”.
The adjudicator concluded that the broad exemption covered by s. 13 (3)(b) was applicable. The complaint was dismissed.
The section 13 (3)(b) exemption, as it related to “age”, framed the exemption in terms of a “bona fide group or employee insurance plan, whether or not the plan is the subject of a contract of insurance between an insurer and an employee”.
The parties agreed that the reduction in benefits to workers over 65 constituted adverse treatment on the basis of age. Because the employer was relying on a statutory defence, the burden was on the employer to establish that its conditions were met.
The adjudicator rejected the employee’s assertions that the exemption did not apply because the plan did not originate from an insurer, but rather arose as a result of bargaining between the employer and the union. In doing so, the adjudicator stated that the collective agreement was the “usual method for establishing benefits for employees within a unionized context”.
On the matter of bona fides, the adjudicator stated:
The subjective elements of bona fides asks whether the plan was adopted in good faith and not for the purpose of defeating protected rights. It concerns motive and intentions …
He stated that the employer’s motives were bona fide. There was no evidence of bad faith and that the age 65 requirement loosely corresponded “to an age where society contemplates a transition from employment to retirement and, so in that sense is not inherently arbitrary or suspicious from a human rights perspective … The plan at issue was adopted in good faith and not for the purpose of defeating protected rights”. The age-based reduction therefore derived from the operation of a bona fide group or employee-insurance plan and was therefore exempt from the scope of s. 13 (1) of the Code.
Decisions regarding bona fides and the establishment of a prima facie case are considered in section 14:410 of the Illness and Absenteeism manual and its supplement.
3. A resignation that was written while the employee was intoxicated was found to be voluntary and valid. It had twice been communicated to the employer, and the employee’s subsequent retraction followed a delay of approximately 10 days.
In Army, Navy & Air Force Veteran's Club # 38, 2019 CanLII 10712 (SK LA), the employee was both the employer’s bar manager and a member of the Club’s membership.
The employee had spent his off-duty Saturday evening celebrating his 35th birthday with other Club members. He became intoxicated and obnoxious. A member of the Club’s Board telephoned the Club’s Manager, at her home, to advise that the employee was becoming unruly and was being ignorant to people, especially to the female bartender who was on duty. The Club’s Manager then spoke with the employee who assured her that he was sober and that there were no problems.
Prior to leaving the Club that evening, the employee left a “resignation” note on the Manager’s desk. He also sent a text stating that he was quitting. On the Monday morning, he texted an apology for his behaviour on the Saturday night but made no mention of his resignation or a retraction of his resignation. The matter was not raised until a meeting some ten days later that was convened to address his suspension as a member of the Club.
The arbitrator stated that “if the employee had not intended to resign, one would expect that he would have taken the earliest opportunity to tell that to [the Club’s Manager.] Yet he took no action until Monday morning, at which time he texted an apology for his behaviour on Saturday night. Even then, there was no mention of the resignation, much less any retraction or repudiation of the resignation.” The arbitrator concluded that
the resignation was voluntary and valid. The fact that the resignation was communicated in writing twice and the delay in retracting the resignation support the conclusion that the [employee] had a clear and continuing intent to resign. While he later regretted the decision, the employer was entitled to take it at face value and did accept the resignation, ending the employment relationship.
The grievance was dismissed.
Decisions regarding an employee’s resignation and the enforceability of such resignations are considered in sections 14:410 and 14:700 of the Illness and Absenteeism manual and its supplement.
In Red Deer County, 2019 AHRC 33 (CanLII) (Gottheil), the Director dismissed the employee’s complaint alleging that he had been discriminated against on the basis of disability (in this case Crohn’s disease) contrary to s. 26 of the Alberta Human Rights Act. That decision was made after the Director had reviewed the written submissions of the parties.
The employee then filed a Request for Review of the Director’s decision. That review, which was conducted by the Chief of the Commission and Tribunals (Michael Gottheil), concluded that the conflicting evidence and the submissions were such that they required a hearing. In doing so, he stated:
… Accommodating an employee with a disability may also include not moving precipitously to discipline or terminate an employee who may, or may not be willing to reveal or discuss their disability. Assessing when the point of undue hardship will be reached is an inquiry that will be based on a variety of factors. These will obviously include the extent of the detrimental impact on the employer’s operations, whether there were adequate opportunities to explore accommodations, and why the employee failed to actively participate in the accommodation process (such as whether there is a stigma associated with the particular disability).
The Chief of the Commission and Tribunals concluded that the employee had provided “more than mere assertions” and that there was a reasonable basis on the evidence to refer the matter to a full hearing. The Director’s decision to dismiss the complaint was overturned, and a Tribunal was to be appointed to hear the complaint “subject to the complainant accepting carriage of the complaint”.
Decisions regarding the issue of accommodation are set forth in Chapter 14 of the Illness and Absenteeism manual and its supplement.
The November, 2019 update of the Manual Supplement is being posted on line. The extensive supplement is available only to subscribers of the Illness and Absenteeism manual. It can be accessed at IllnessandAbsenteeism.com using the subscribers email and assigned password