llness and Absenteeism.com - October 2019 Newsletter

In this edition you find:

 

A. Featured Case: An employee who worked as a commercial painter was terminated for having used medical marijuana at work. The employee generally worked on an outdoor swing stage that was suspended 37 floors above the ground.

The employee’s claim that his supervisor knew and condoned the use of medical marijuana while on the job site was rejected as being unreasonable given the circumstances. The adjudicator also concluded the employer’s “zero tolerance” policy had met all three elements of the Meiorin test.    [Click here]

B. Recent Decisions of General Interest

1. An employer who terminated an employee with Parkinson’s disease after only three days of employment was ordered to pay the employee $5,000. for lost wages plus a further $25,000. as compensation for injury to the employee’s dignity, feelings and self-respect.    [Click here]

2. An employee who was diagnosed as suffering from depression and anxiety, post-traumatic stress disorder and insomnia was terminated after twice calling in sick during the first four days of her employment. Her claim alleging disability and a failure to accommodate was dismissed because the evidence had not established that the employer knew or ought reasonably to have known that the employee had a disability.

The employee’s allegation of reprisal was dismissed, for it was based primarily on the employee’s subjective feelings rather than objective evidence of any employer wrongdoing.      [Click here]

3. Security personnel and other employees who are integral to the operation of an airport generally fall within federal jurisdiction over aeronautics and as such, are governed by the provisions of federal rather than provincial human rights legislation.    [Click here]

4. An arbitrator has latitude to admit expert evidence that would not be admissible in a court of law.  Factors that an arbitrator might consider in coming to a decision to admit expert evidence could include the integrity of the arbitration process, fairness, timeliness, expense and the informality of the arbitration process.      [Click here]

5. An employee who failed to file relevant documents along with a witness list and a summary of anticipated evidence had her human rights application dismissed on the basis of abandonment.    [Click here]

 


A. Featured Case: An employee who worked as a commercial painter was terminated for having used medical marijuana at work. The employee generally worked on an outdoor swing stage that was suspended 37 floors above the ground.

The employee’s claim that his supervisor knew and condoned the use of medical marijuana while on the job site was rejected as being unreasonable given the circumstances. The adjudicator also concluded the employer’s “zero tolerance” policy had met all three elements of the Meiorin test. 

In L & L Painting and Decorating Ltd., 2018 HRTO 238 (CanLII) (Johnston), the employee had been terminated for using marijuana at work.

The employer was a commercial contractor whose business it was to restore high-rise buildings. The employee worked on a “swing stage” that was suspended 37 floors above the ground. The work season generally ran from May to October of each year. During that period, the employee worked 12 hours a day, six days a week.

The employee suffered from degenerative disc disease that left him with chronic pain. His claim was supported by medical documentation. The adjudicator accepted that the employee’s condition constituted a medical disability within the meaning of the Code.

The evidence of both parties was at times inconsistent. The adjudicator stated that in such a case, and absent any corroborating evidence, the “onus rests with the [employee] to establish the factual basis to prove discrimination.”

The employee had been prescribed marijuana for pain control. His prescription permitted him to use up to five grams per day. The employee testified that he smoked five “joints” per day, with two of those being at work. He contended that his supervisor knew and condoned his use of medical marijuana on the job site.

The pain specialist who prescribed the marijuana had been advised by the employee that he was employed as a painter. The specialist testified that he had assumed that the employee was employed as an interior house painter. He conceded that he would never have authorized the employee to use marijuana while at work had he known the true nature of the employee’s work. As it was, he had advised the employee that he should not drive for two hours after marijuana use. He explained that the reasons for such restriction were based on the euphoric effect that marijuana had on the user and its impact on slowing one’s motor skills and response time.

The employee contended that his supervisor had been aware and condoned his use of marijuana at work. The adjudicator rejected that evidence. The employee was aware that the General Contractor and his own employer had a zero tolerance policy in place for “the use of illegal drugs, alcohol on the job sites, or taking prescription drugs that could cause impairment while working.” The essence of the policy had been reviewed with the employee annually, including just six weeks prior to his termination.

In the absence of any corroborating evidence, the employee’s claim that the supervisor was aware of and condoned his marijuana use was simply unreasonable given the circumstances.

The employee also alleged that the employer had failed to accommodate him in respect of his need to use medical marijuana. The adjudicator found that the employee had never made a request for accommodation. The adjudicator also stated that even if such a request had been made, he would not have found that the employee’s “preference for medicating at work was part of any reasonable accommodation.”  He also stated:

Moreover, the [employer] is not obliged to accommodate preferences if those would amount to an undue hardship, or, for that matter if those fall short of a reasonable alternative accommodation proposed by the [employer] … I would have no difficulty in concluding that the [employee’s] preferred accommodation presented an undue hardship in light of the health and safety concerns particular to this workplace.

The employee had also contended that the employer’s zero tolerance policy violated the three-part test in Meiorin. To meet that test, the employer would have to establish that:

a. it adopted a zero tolerance policy for purposes rationally connected to legitimate health and safety on the job site;

b. that its policy was adopted with an honest and good faith belief that it was necessary to the fulfilment of that purpose; and

c. that the conditions imposed by the policy were reasonably necessary to the accomplishment of that purpose, in that it is impossible to accommodate the individual without imposing undue hardship.

The evidence established that the employer had met all three elements of the test.

In conclusion, the adjudicator stated:

The policy itself does not close the door to accommodating employees who use medical marijuana but may restrict such accommodation to a non-safety sensitive job. The fact that the policy does not prescribe automatic termination provides some flexibility to the employer to consider requests from those who need accommodation.

Decisions regarding the use of both medical and recreational marijuana are considered in section 15:202 of the Illness and Absenteeism manual and its supplement.

 


B.     Recent Decisions of General Interest

1. An employer who terminated an employee with Parkinson’s disease after only three days of employment was ordered to pay the employee $5,000. for lost wages plus a further $25,000. as compensation for injury to the employee’s dignity, feelings and self-respect.   

In L.A. Fitness, 2018 HRTO 205 (CanLII) (Bayefsky), the employee, who was suffering from Parkinson’s disease, alleged that his employment had been terminated after three days because of his disability.

The employee had suffered from Parkinson’s disease for over 10 years. His employment was terminated by telephone, with the employer simply advising that “head office wanted to transfer someone” to his position.

The employer failed to respond to the employee’s human rights complaint and to the Tribunal’s direction to file a response.

The adjudicator stated that where an employer has failed to respond, the employee, to establish discrimination

need only show that he had, or was perceived to have, a disability; that he had received adverse treatment; and that his disability was a factor in the adverse treatment. Where conclusions about [an employee’s] termination need to be drawn from circumstantial evidence, the Tribunal must determine if it can be inferred from the evidence that it is more probable than not that [the employee’s disability] was a factor in the [employer’s decision to terminate … The disability need only be one factor in the decision to terminate; it does not have to be the only or primary reason …

The adjudicator found, on a balance of probabilities, that the employee’s disability was a factor in his termination. He stated that the employer’s comments, setting forth the reason for the termination, were insufficient to explain the basis for the termination:

In the absence of any evidence clarifying [the employer’s] comments, I find it reasonable to infer, on a balance of probabilities, that the [employee’s] disability was a factor in his termination.

Although the employee had only been employed for three days, the adjudicator awarded $25,000 in compensation for injury to the employee’s dignity, feelings and self-respect. In doing so, the adjudicator stated that the employee “was a particularly vulnerable individual whose termination resulted in significant harm to his feelings, dignity and self-respect, including a loss of confidence.”

In making such an award, the adjudicator acknowledged that as a result of the termination, the employee had to take additional medication to control both his physical condition and his heightened anxiety.

In assessing the quantum to be  awarded, the adjudicator relied on both Ron Joyce Jr Enterprises Ltd. o/a Tim Horton’s, 2017 HRTO 723 (CanLII) and Best Buy Canada, 2010 HRTO 1880 (CanLII).

Given the limited evidence dealing with lost wages, the adjudicator limited the award for lost wages to $5,000.

Decisions regarding damage awards can be found in section 14:702 of the Illness and Absenteeism manual and its supplement.

 


2. An employee who was diagnosed as suffering from depression and anxiety, post-traumatic stress disorder and insomnia was terminated after twice calling in sick during the first four days of her employment. Her claim alleging disability and a failure to accommodate was dismissed because the evidence had not established that the employer knew or ought reasonably to have known that the employee had a disability.

The employee’s allegation of reprisal was dismissed, for it was based primarily on the employee’s subjective feelings rather than objective evidence of any employer wrongdoing.  

In Power Can Financial Services Inc., 2018 HRTO 289 (CanLII) (Bhattacharjee), the employee alleged that she had been discriminated against because of her mental disability. She alleged that the employer had failed to investigate her disability-related needs and had instead terminated her employment.

The employee was terminated after twice calling in sick during the first four days of her employment. Her application was dismissed on the basis that she had failed to prove discrimination on a balance of probabilities.

The employer contended that the employee never disclosed that she had a disability; that she appeared healthy in the workplace; and that they had no reason to suspect that she suffered from a disability.

The employee testified that she had been diagnosed with depression and anxiety, post-traumatic stress disorder and insomnia. She claimed that the work that she had missed was due to her depression and anxiety.

On the second day of absence, which occurred on the employee’s fourth day of employment, the employer decided that it would now check the employee’s references. The employer was told that the employee had missed several days of employment during the first weeks of her employment with her previous employer. It was at that point that the employer decided to terminate her employment.

Approximately two months after the termination, the employer received a demand letter from the employee’s solicitor. It set forth an offer to settle and advised that absent a response, a legal proceeding might be commenced without further notice. At that point, the employer began investigating the employee’s history and then caused its counsel to send a counter offer to the employee’s counsel. It was rejected and the matter ultimately proceeded to a hearing.

The adjudicator concluded that the employee’s depression and anxiety constituted a disability. He considered however that the evidence had not established that the employer knew or ought reasonably to have known that the employee had a disability, for the employee had not informed the employer that she suffered from depression or anxiety nor did she advise them of the need to take time off from work because of her disability. The adjudicator also commented that the employee was not ignorant of the accommodation process, for she had filed a human rights application against her former employer, and in that application, she referred to the accommodation process and the steps that she had taken.

The adjudicator also commented upon the stigma that can be present when dealing with mental disabilities:

I appreciate that there is a stigma associated with mental disabilities, and understand her reluctance to disclose to the [employer] that she had depression and anxiety or request accommodation of disability-related needs early in her employment. What is less understandable is her failure to request accommodation of her disability-related needs when the [employer] terminated her employment. She then had nothing to lose, and had a clear opportunity to do so when [the office manager] encouraged her to speak with the [owner] about retaining her job when she picked up her cheque.

The adjudicator stated that the employee had downplayed her insomnia. He commented that

Insomnia can amount to a disability if it is serious, but it can also be a “normal” ailment, like a cold or the flu. Occasional or minor insomnia is common and does not present obstacles to full participation in society. A reasonable person would interpret the [employee’s] words that she had a “bit of insomnia” as having a “normal” ailment rather than a disability.

The facts that were relied on to terminate the employee’s employment did not establish that the employer “ought reasonably to have known that the [employee] had a disability. [She gave the employer] the impression that she was missing work because of “normal” ailments (vomiting and diarrhoea as a side effect of prescription medication for a bit of insomnia, or vomiting and diarrhoea because of food poisoning) not disabilities. In these circumstances it cannot be said that the [employer] had a duty to inquire whether the [employee] had a disability, [whether] the [employer’s] duty to accommodate her disability-related needs had been triggered, and [whether the employer had] terminated her employment because of her disability.

The employee also alleged that she had been subject to reprisals that related to the employer investigating her employment history, her social media accounts and her family after she threatened to commence and then commenced a human rights proceeding against the employer. The adjudicator stated:

In order to establish a case of reprisal, the [employee] must prove the following elements:

1. An action taken against, or threat made to, the [employee];

2. The alleged action or threat is related to the [employee] having claimed, or attempted to enforce a right under the Code; and

3. An intention on the part of the employer to retaliate for the claim or attempt to enforce the right.

The adjudicator dismissed the reprisal allegation, stating that it was very weak and that it was based on the employee’s “subjective feelings … rather than objective evidence”  substantiating that the employer took the actions that it did “to intentionally retaliate against [the employee] for asserting her rights under the Code in her demand letter and Application … The fact that [the investigation caused the employee to feel] bullied and embarrassed … is not evidence that it was done with the intention of retaliating against her for claiming and enforcing her rights under the Code.”

The adjudicator dismissed the employee’s allegation that the employer had subjected her to reprisals by investigating her employment history, social media accounts, and family (i.e. the date of her uncle’s funeral) after she threatened to commence and then commenced a human rights proceeding against it.

Decisions regarding an employee’s obligation to trigger the accommodation process are set forth in section 14:432 of the Illness and Absenteeism manual and its supplement.

 


 3. Security personnel and other employees who are integral to the operation of an airport generally fall within federal jurisdiction over aeronautics and as such, are governed by the provisions of federal rather than provincial human rights legislation.        

In ASP Inc., 2018 HRTO 373 (CanLII) (Pickel), the employee had filed an Ontario Human Rights application against a company that appeared to be federally-regulated. The application was dismissed for want of jurisdiction, with the adjudicator stating that:

The [Ontario Human Rights] Code only applies to matters that fall within provincial jurisdiction; it does not apply to federally-regulated businesses. [The employer] is a security company whose core business as it relates to this Application is the provision of security services to the Greater Toronto Airport Authority.

Aeronautics is a matter that falls under federal jurisdiction. This Tribunal and various courts and other tribunals have all found that the provision of security services at airports fall within the federal jurisdiction over aeronautics … As such, the Tribunal has no jurisdiction over the Application. Any human rights claim against the respondents must be made to the Canadian Human Rights Commission.

Decisions regarding federal versus provincial jurisdiction are considered in section 14:208 of the Illness and Absenteeism manual and its supplement.

 


 4. An arbitrator has latitude to admit expert evidence that would not be admissible in a court of law.  Factors that an arbitrator might consider in coming to a decision to admit expert evidence could include the integrity of the arbitration process, fairness, timeliness, expense and the informality of the arbitration process.     

In Okanagan College, 2019 CanLII 1196 (BC LA) (Peltz), the arbitrator considered the admissibility of an expert’s report in a case alleging that the employer had discriminated by terminating employee life insurance benefits at age 65. His report, in part, sought to explain why “age had been a laggard” in the development of human rights law. The expert, Professor Lynk, testified that he had been asked to prepare a report that addressed the following issues:

equality of bargaining power in the workplace; collective bargaining and minority human rights interests; the uneven development of human rights issues in the workplace; and age as a protected human rights ground in the workplace.

Much of the discussion in the report was stated to involve “court decisions and legislation, interspersed with evidentiary references and citations from academic literature.”

After having considered the Mohan (SCC 1999) and the White Burgess (SCC 2015) decisions, arbitrator Peltz stated that the arbitral authorities suggest that

the Mohan rules should be considered by a labour arbitrator or an administrative tribunal, but generally speaking, Mohan is not binding if the governing statute permits flexibility in the reception of evidence.

Arbitrator Peltz commented that the authorities support the principle that “tribunals may be entitled to act on any material which is logically probative, whether or not it would be admissible under the court rules of evidence. It depends on the legislative framework.” He then endorsed arbitrator Greyell’s approach to the admission of expert evidence that had been formulated in Holbeche [British Columbia (Ministry of the Attorney General), [1996] B.C.C.A.A.A. No. 350 (Greyell)]. There, arbitrator Greyell stated:

But having made the observation that an arbitrator is not bound by the strict rules as to admissibility of evidence is not to say that these rules should be ignored. Rather, the admissibility of evidence should be assessed from the perspective of whether such evidence will assist or impede an arbitrator’s ability to perform his/her statutory mandate under s. 82(2) of the Labour Relations Code [of British Columbia] while at the same time preserving the integrity of the arbitration process in providing (and appearing to provide) both parties with a fair hearing and while proceeding in a timely, inexpensive and informal fashion.

Arbitrator Peltz concluded that, based on the foregoing, the admissibility of an expert’s evidence in an arbitral matter must be decided “as an exercise of arbitral discretion.” He stated that:

Thus, there is no outright prohibition against receipt of the [expert’s report]. A variety of factors are relevant to admissibility, including the statutory mandate, integrity of the arbitration process, fairness, timeliness, expense and the informality of arbitration proceedings. In the end … admissibility of the Lynk Report remains a matter of arbitral discretion.

Arbitrator Peltz then exercised his discretion and applied the principles in Holbeche to admit the expert evidence.

Decisions regarding the admissibility of expert evidence are considered in section 13:400 of the Illness and Absenteeism manual and its supplement.


5. An employee who failed to file relevant documents along with a witness list and a summary of anticipated evidence had her human rights application dismissed on the basis of abandonment.   

In Winners Merchants International LP, 2018 HRTO 222 (CanLII) (Gananathan), the Tribunal advised the parties that they were required to disclose and file any documents that they intended to rely upon at the hearing, the names of any witnesses that they intended to call along with a summary of their anticipated evidence. The employee failed to do so, and a Case Assessment Direction was subsequently sent to her, advising that if she did not file such material by the stated deadline, her Application might be dismissed as having been abandoned. Again she failed to do so and her Application was dismissed.

See also d'Ancona, 2018 HRTO 217 (CanLII) (Overend), where the employee’s application was similarly dismissed as having been abandoned.

Decisions regarding production of documents and particulars are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.