llness and Absenteeism.com - September 2013 Newsletter

In this edition you will find...


Feature Article: The Duty to Accommodate Does Not Arise Where the Employee Fails to Establish that She Was Suffering from a Proven Disability

The duty to accommodate is not a free-standing obligation. It does not arise, from a medical perspective, until the employee has established that she is suffering from, or has suffered from a perceived or actual disability, and that as a consequence, she has been subjected to discrimination by the employer.

The term “disability” is synonymous with “handicap.” While one or the other of those terms has been defined in most jurisdictions, the legislation in British Columbia, Manitoba and Quebec is silent on the matter. Despite differences in legislation, courts, arbitrators and human rights tribunals have tended to take a unified approach to defining these terms. In general, it can be said that a disability usually is distinguished from a transitory illness that has little impact on an individual’s ability to participate productively in employment or other aspects of life. The disability need not be ongoing or permanent, and it need not be proven to have existed where the employer has discriminated based on a perception of disability.

Several recent cases illustrate the importance of establishing (rather than merely assuming) that the employee’s condition amounts to a disability.

In Telus, 2012 CanLII 47553 (AB GAA) (Smith), both employer and union medical experts agreed that the employee suffered from a Dependent Personality Disorder, as defined in DSM IV (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders). They disagreed however on whether the employee’s illness constituted a disabling condition.

The employee had been disciplined on several occasions, and then finally terminated, for having failed to fulfill her work obligations. She lived with a demanding and abusive mother, and she attributed her performance difficulties to conflicts with her mother.

The employer’s expert was of the view that the employee “was capable of making choices to comply with her [work] schedule but chose not to do so”, so that her illness could not be considered to constitute a disabling condition. The union’s expert opined “that the conflict between the Grievor’s excessive dependence on her mother and fear of losing that relationship interfered with her ability to make appropriate choices with respect to her obligations to her employer.”

The arbitrator began by stating that there was “no doubt whatsoever that the Employer had met its burden to establish that there was just and reasonable cause to discipline the Grievor and that prima facie discharge was not an excessive response.” However, that preliminary conclusion was subject to a human rights consideration arising from the union’s contention that the employee’s misconduct was attributable to a disabling condition:

[A human rights] analysis requires the Union to provide evidence of a prima facie case of discrimination against the Grievor. That requires the Union to establish on the balance of probabilities that the Grievor has a disability, that she was treated adversely, and that the adverse treatment was a result of her disability, or that the disability was a factor in the adverse treatment …

The arbitrator found that the expert medical evidence established that the employee was, in general terms, “a high functioning individual who understood and understands her work obligations. She was capable of performing those obligations and indeed did so appropriately after counselling.” The arbitrator then considered the DSM IV definition of Personality Disorder, where it stated that “occupational functioning may be impaired if “individual initiative is required.” No such initiative was required in the employee’s job, and therefore, if she suffered from such a disability, it would not have impacted her ability to perform a position that did not require independent initiative. The grievance was dismissed.

In Corporation of the City of Windsor, 2012 CanLII 69051 (ON LA) (Snow), the employee was terminated after having missed five shifts without having notified the employer. The union contended that the employee suffered from a mental disability.

The employee’s doctor testified “that he could not find a diagnosis which would fit the grievor’s symptoms.” The arbitrator stated that “the fact that [he] could not diagnose a mental disorder and was unable to label the grievor as having a mental disorder is not, of course, conclusive. However, it does make it much more difficult for me, as arbitrator, to conclude that the grievor had a disability or to label the grievor’s conduct as flowing from a disability.”

There is no doubt that the grievor acted in a manner that most other fire fighters, indeed, most other employees, do not act. When he was faced with a stressful situation he often focused on whatever was causing the stress – his marital difficulties, his difficulties with police, his financial problems, etc. – and he did not attend work and he did not advise the Employer that he would not be attending work.

 Based on the medical evidence, the arbitrator concluded that the employee’s responses in times of stress “generally followed a similar pattern. The grievor narrowed his thinking and focused on the issue causing him stress to the near exclusion of all else. [His doctor] described this as dissociation, but [he] clearly stated that the grievor did not have “dissociative disorder” and he agreed that dissociation was a symptom and not a diagnosis of an illness or disorder.”

The arbitrator commented that the fact that the employee had anger management issues did not mean that he had a mental disorder. Although he might be considered to be somewhat dysfunctional, that in itself does not constitute a disability:

Many people respond to problems in a healthy and productive way. Some people do not respond in a healthy manner and their responses are sometimes referred to as “dysfunctional” responses. In these terms, the grievor’s responses to many problems can be viewed as dysfunctional, but I cannot conclude that the evidence of a dysfunctional response, even of frequent dysfunctional responses, is evidence of a disability under the Code and, in particular, I am unable to find that the evidence that the grievor made dysfunctional responses to many of the stressful personal situations which he confronted demonstrates that the grievor had a mental disorder.

I cannot think that the Legislature intended that evidence of an unusual or dysfunctional response to stress was intended to mean that a person is disabled in terms of the Code. Many employees who are dismissed from their employment have dysfunctional responses to problems or to stress, but I do not think that the Legislature intended that they would all be viewed as having a mental disorder under the Code. In my view, there needs to be more – there needs to be evidence of a more clearly defined condition.

The employee’s absences were considered culpable and the employee’s termination was upheld.

In Canada Revenue Agency, 2013 PSLRB 60 (CanLII) (Richardson), the adjudicator began his analysis by considering whether the employee was suffering from a disability:

The grievor’s first step was establishing that he had a disability. I accept on the evidence that he had pain on occasion. I also accept that, at times, certain physical activities – depending on their vigour and number – might cause him pain or an increase in pain.

But that simple fact is not enough, in itself, to establish the existence of a disability. A disability arises only when a particular physical or mental condition prevents an employee from performing an important part of his or her job. So, for example, the loss of a little finger constitutes a disability for a harpist but not for a labourer.

The fact that someone suffers pain on certain occasions is not enough to establish a disability. The experience of pain is subjective and variable. Pain is, to some extent, a factor in the lives of many people without necessarily amounting to a disability. It is often said that we live in a vale of tears. Television is replete with ads for different types of pain relievers. Every local pharmacy has rows of pills designed to alleviate different types of pain brought on by different activities. That is all testament to the truism that suffering from pain in and of itself does not establish that one is disabled. The existence of pain is a first step, so to speak, in establishing the existence of a disability, but it is not conclusive. The person claiming to be disabled because of pain must also establish on a balance of probabilities that the pain is severe enough that it would be unreasonable to expect that person to perform the tasks that bring it on.

In such an exercise, the credibility of the employee – at least with respect to the nature and extent of the pain and what brings it on – necessarily becomes an issue. Pain is subjective. There are no truly objective tests external to the employee to evaluate his or her experience of pain. Objective observations made of the employee while performing tasks may provide some evidence, but even those depend, for the most part, on the employee’s report.

The fact that the employer appears to have accepted that the grievor’s condition was such as to require accommodation is also not enough to relieve the grievor of establishing the existence of a disability. An adjudicator is not bound to reach the same conclusions that the parties have during the course of their dispute. Parties make their decision based on information that may be incomplete. They may make decisions for reasons other than fact. So, for example, an employer may elect to give an employee’s claim the benefit of doubt or to accept the claim for reasons of employee morale or good labour relations. But once a matter moves into the realm of final adjudication, a grievor is required to prove all the elements necessary to establish his or her grievance – unless, of course, there has been a formal admission. And there was no such admission in this case.

The adjudicator concluded that the employee had failed to establish that he was disabled from carrying out his duties. He was not disabled within “the context of the accommodation that had been offered to him.”

In Canadian Mental Health Association, Westman Region Inc., 2013 CanLII 125 (MB HRC) (Harrison), the employee was allegedly discriminated against on the basis of her addiction to alcohol.

The employer did not dispute that the employee had an addiction to alcohol or that this constituted a disability. However, the adjudicator stated:

… whether a particular individual has an addiction or illness, clear and cogent medical evidence is generally required in order to establish that that is the case.

No medical evidence was led in this instance to establish that the Complainant suffered from an addiction or abuse of alcohol amounting to an illness. … I recognize, of course, that the parties did not dispute that the Complainant suffers from alcoholism … I am not satisfied however that this is sufficient proof of the existence of actual illness or an actual disability.

Accordingly, based on the evidence which is before me, I find that it has not been established that the Complainant suffers from an addiction to alcohol amounting to a disability within the meaning of the Code.

However, that was not the end of the matter, for a disability includes a perceived disability, and there was no question but that the employer perceived that the employee was suffering from alcoholism. The adjudicator accepted that the employee’s addiction to alcohol was at least one of the motivating factors in the adverse treatment that she received. That was considered to be sufficient to establish a prima facie case of discrimination.

Despite decisions such as the foregoing, there are many cases where arbitrators have, in the absence of direct medical evidence, found that a disability did exist. For example, in Servisol Home Improvements Inc., 2013 HRTO 843 (CanLII) (Aterman), the employee was found to be disabled based on his unchallenged evidence that he suffered from a blockage in his intestine until it was ultimately treated. He testified that he suffered from a great deal of physical discomfort that prevented him from working due to episodes of nausea, vomiting and diarrhea. The employer was aware of the employee’s issues and appeared to accept that his health problems would necessitate his absence from work. 

Decisions such as Servisol are questionable, and often arise because of the manner in which the case was argued. A party who relies on such cases may find that the existence of what was truly a disability fails for lack of proper medical evidence. The onus in that regard remains on the employee.

Issues regarding proof of a disability are reviewed in the Illness and Absenteeism manual at section 14:300, commencing at page 518 of the manual.



Recent Decisions of General Interest

1.  In Tenaris Algoma Tubes Inc., 2013 CanLII 33768 (ON LA) (Randall), the adjudicator upheld a one day suspension for lateness.

The employee, who had been 90 minutes late, advised the employer that his lateness was due to his having to return a piece of rental equipment prior to coming to work that day. No arrangements were made with the employer, and the employee did not call to advise that he would be late. The arbitrator agreed with the employer that the employee’s conduct was egregious. The union was unsuccessful in its assertion that the employee had been subject to differential treatment.

2. In Pharma Plus Drug Marts Ltd., 2013 CanLII 34835 (ON LA) (Marcotte), the employer successfully terminated 29 employees who were on long term disability.

Each of the terminated employees had been absent in excess of several years. The employer had satisfied itself, based on inquiries made with the disability carrier, that each of the affected employees would not be able to return to work, with or without accommodation.

The employees each received a letter setting forth the basis for their termination:

In reviewing your medical documentation, it is clear to us based on the information received and your prolonged absence from the workplace that:

  1. You are incapable of performing the essential duties of your position with PharmaPlus due to your illness: and
  2. there is no reasonable expectation that you will become able to return to your position in the foreseeable future.

Pursuant to the foregoing, it is our view that the employment contract has been frustrated as a result of your inability to fulfill the terms and conditions of your employment.

The employees were covered under the Union’s Trusteed Dental Plan. Prior to their termination, they were also entitled to AD&D and life insurance coverage. The initial question to be determined was whether the provisions of the collective agreement precluded the employer from relying on “innocent absenteeism” to properly dismiss the employees.

After having analyzed the case law, the arbitrator found that the terminations would not interfere with the employees’ receipt of long term disability benefits and that there was nothing in the collective agreement regarding the group benefits that would prohibit a termination for innocent absenteeism. The Union’s grievance was dismissed.

Issues regarding whether a non-culpable termination is precluded based on the existence of continuing benefit entitlements are considered in Section 17:303 of the Illness and Absenteeism manual, commencing at page 857 of the manual.

3. In Southern Railway of British Columbia Ltd., 2012 CanLII 51808 (BC LA) (Germaine), the employee, who had been injured, was dismissed for dishonesty. The alleged dishonesty was that he had misrepresented the seriousness of his injury and that he had also misrepresented, to his doctor, the unavailability of modified work. He was reinstated with a 30 day suspension (but without back pay), for the misrepresentations that he made to his doctor.

The arbitrator concluded that the employee was truthful with the employer with regard to the nature and severity of his injury but that he was not truthful with his doctor when he relayed information regarding the unavailability of modified work. The “grievor was not prepared to follow the modified duties program. To be more precise, the grievor acted to circumvent it.”

The upshot is that even though the grievor was unable to work until June 13, he was in breach of the Company’s modified duties program, and in that sense, his obligation to report for work. His breach was not being honest with [his doctor] in order to escape the modified duties program. The Tree Island award cited by the Company clarifies how the employee’s duty to provide her or his physician with accurate information is integral to the obligation to report for work:

Arbitral authority is clear that an employee has an obligation to work if capable of so doing and is under an obligation to explain his/her absence from work. I would include within this concept that if an employee is physically and mentally able to perform light duty work then an obligation rests on the employee to perform such work. This is a dual responsibility. The law requires an employer to reasonably accommodate an employee’s return to the workplace following injury by providing modified duties and requires an employee to accept reasonable work which can be done within that employee’s capabilities. Clearly what is reasonable under any given circumstances will depend on the facts in any given case. Included in any assessment of reasonableness will be the nature and extent of injury, whether the grievor seeks medical attention, and if so, what advice is given by the physician. Obviously that physician’s knowledge of the work available to be performed will be significant.

In the result, a one month suspension was substituted for the termination, but with no compensation for any income lost over and above the period of suspension.

4. In Loblaws Supermarkets Limited, 2012 CanLII 15669 (ON LA) (Surdykowski), the arbitrator stated that in seeking production of documents, a party may “fish for documents” provided that they are fishing within the litigation pond already established by the allegations and issues in dispute.

The arbitrator relied on his decision in Board of Governors of Laurentian University, 2011 CanLII 8978 (ON LA), where he wrote:

Just as procedural fairness in a civil court proceeding requires complete mutual pre-hearing production, procedural fairness in a grievance arbitration hearing requires full mutual pre-hearing production of non-privileged arguably relevant documents if requested. Proper production tends to focus the parties’ attentions and expedite the proceeding by ensuring that both parties’ litigation cards are on the table in advance of the hearing. A party which objects to producing a prima facie arguably relevant document must identify the document with particularity and state its objection. A party which claims privilege must identify the privilege claimed. It is only then that a production issue can be properly dealt with.

… there is no blanket prohibition against “fishing”. The parameters of a piece of litigation establish a sort of litigation pond. A party cannot use a production request to discover whether it has a case to be pursued or a defence to be mounted.  Prima facie, the grieving party should know why it has grieved, and the responding party should know why it took the action complained about. A production request cannot be used as a sort of divining rod to discover whether or where there is a litigation pond. A party is permitted to fish for arguably relevant documents within the litigation pond already established by the allegations and issues in dispute in the particular case, but a party is not permitted to fish for documents to discover a litigation pond or for documents outside of the established litigation pond. This is why litigation parameters have to be established. Arguable relevance cannot be determined in the air. Grievance arbitration litigation parameters are defined by the parties’ positions on the merits of a case, and that is why both parties’ positions provide the context and basis for a determination of arguable relevance.

Either party may seek production of documents arguably relevant to either party’s assertions. To the extent that that is fishing, it is fishing within the litigation fishing hole opened by the particularized allegations made either in support or defence of the claim made. However, a party cannot make a bald allegation that collective agreement or statutory rights have been violated and then demand broad production in the hope of discovering something that supports that allegation. That is classic prohibited fishing. As I wrote in Laurentian University, by the time a grievance has been processed through the grievance procedure and the parties arrive at arbitration the grieving party should know why and be able to articulate why it is grieving, and the respondent should know its defence.

The law regarding production of documents is considered in Chapter 10 of the Illness and Absenteeism manual, beginning at page 265 of the manual.