llness and Absenteeism.com - Summer 2017 Newsletter

In this edition you will find:

A. Featured Case: An Ontario arbitrator has found that establishing a nexus between addiction and theft of patient medication does not necessarily provide a defence to termination. Her decision, which departed from the existing Ontario arbitral consensus, adopted the judicial approach taken in both Alberta and British Columbia    [Click here] 

B. Recent Decisions of General Interest

  1. Surveillance evidence that was inadvertently overwritten may be introduced through the testimony of a witness who had earlier reviewed the surveillance tape.   [Click here]
  2. The untruthfulness of an employee’s testimony is unlikely to be caused by an underlying medical condition. Expert evidence in this case established that untruthfulness is not generally a symptom of depression or anxiety but rather is reflective of a pattern that begins in childhood and continues into adulthood.    [Click here]
  3. An employee who failed to provide a requested medical report was considered to be insubordinate and subject to discipline for such failure.   [Click here]
  4. A surreptitious cell phone recording of a personal attack by a fellow employee was held to be admissible at arbitration.   [Click here]
  5. A recent Ontario decision rejected the notion that all arguably relevant documentation must be produced. The arbitrator relied on an earlier decision of arbitrator Knopf which had also required that the information being sought be particularized, that the request not amount to a “fishing expedition,” that there be a clear nexus between the information requested and the positions in dispute at the hearing and that disclosure would not cause undue prejudice. To this arbitrator Stout added the additional element of proportionality.    [Click here]
  6. An employer may not be able to establish undue hardship where the employee could have been accommodated by the provision of an unpaid leave of absence.   [Click here]

A. Featured Case: An Ontario arbitrator has found that establishing a nexus between addiction and theft of patient medication does not necessarily provide a defence to termination. Her decision, which departed from the existing Ontario arbitral consensus, adopted the judicial approach taken in both Alberta and British Columbia.

In Cambridge Memorial Hospital, 2017 CanLII 5289 (ON LA) (Randall), the employee was terminated after admitting to engaging in a pattern of narcotic theft. The thefts allegedly involved two to six Percocet tabs per shift along with Tylenol 3s over a period of several years. The employee admitted having stolen the Percocets but denied that she had stolen the Tylenol 3s. Her evidence was that she was able to control any compulsion in that she did not ingest the narcotics or any other intoxicating substances during her shifts.

The arbitrator considered two different lines of authority.

The union had contended that the arbitral consensus in Ontario, made up of eight or nine awards, stood “for the proposition that [a nurse] who pleads and proves an addiction to her drug of choice, has a human right’s defence to termination for stealing that drug from her employer and from the patients in her care, if she has successfully committed to rehabilitation.”

Contrasted with that approach was the line of “court made” authority, commencing with the 2008 British Columbia Court of Appeal decision in Gooding. The employer relied on that line of authority as standing “for the proposition that to hold an addict to the same standard of culpability as a non-addict for a criminal act is not prima facie discrimination, because there is nothing arbitrary about the norm being enforced.”

Arbitrator Randall commented that after the parties had made their final submissions, she noted that none of the arbitration awards relied on by the union had considered the Gooding line of decisions in their analysis. She also noted that two other arbitration awards, significantly on point but with strikingly different results, had issued in the month following final submissions. The arbitrator then convened a conference call and directed counsel to provide any case law that brought the two lines of authority together.

The employee, with more than 28 years of impeccable service, was diagnosed as having an “opioid addiction currently in recovery.” Although the employee initially denied the thefts, she quickly acknowledged that she had a “problem”, and she went off work on disability. She was admitted to an in-house treatment program and was discharged after a total of 35 days. At the date of the hearing, she was involved in a rigorous drug testing program, where her urine was tested for alcohol and a range of drugs every three days. She was also subject to a number of conditions imposed by her professional licensing body.

The arbitrator commented that the employee’s evidence “respecting the onset of her drug dependency and its escalation [did] not amount to a coherent narrative … While I would not expect her to testify to specific dates, some evidence of the arc of her addiction is required, both with respect to its commencement and its escalation. Her evidence with respect to both of these features of addiction was just not very good.” The employee’s failure to acknowledge the thefts of the Tylenol 3s was not credible. “Without establishing a triggering event, it is significantly more difficult to conclude that [the employee] was addicted when she commenced stealing the Tylenol 3s.”

The arbitrator stated that it was significant that many of the medication thefts involved a diversion from a patient.  That “…was of great consequence to the Hospital. It meant not only that some patients were being denied appropriate pain relief at the time, but that, because not properly documented, they might be over medicated in the future.”

In reviewing the arbitral authorities from Ontario, arbitrator Randall commented that the case law had evolved to the point that an addiction had become a defence to termination rather than simply a significant factor to be considered in mitigation of penalty.

Arbitrator Randall reviewed the “hybrid” approach that had initially been formulated in British Columbia:

Essentially, the hybrid analysis requires an arbitrator to both apply a disciplinary or just cause analysis to the culpable aspects of the misconduct and a human rights analysis to the non-culpable aspects. The analysis of arbitrator Hayes in London Health Sciences Centre … is in accord with the hybrid approach without explicitly mentioning it by name … While the arbitrator acknowledges  that, on a just cause analysis the termination would be upheld, he found, consistent with the addiction specialist’s report, …” that the employee “had no control over her behaviour.”

The arbitrator commented that it was the hybrid approach, although not referenced by name, that had generally been applied by Ontario arbitrators.

In the view of arbitrator Randall, the British Columbia Court of Appeal decision in Gooding amounted to a clear dismissal of such an approach where the workplace conduct in issue was criminal in nature. She summarized the decision in the following terms:

The Court, citing a number of Supreme Court of Canada authorities, re-iterated that the first step in a human rights discrimination analysis is proof of discriminatory conduct by the employer. Was Gooding, as an alcoholic and a member of a protected group, treated differently or arbitrarily because of his membership in that group? The Court found that he was not. He was fired for theft, a crime, as any other non-alcoholic employee would be. Was he subjected to indirect or adverse effects discrimination by having the general rule: theft results in termination, applied to his protected class? Was that a discriminatory burden? As will become clear, the courts are not sympathetic to such an argument. Theft is a crime. It is a well-accepted social norm. There is nothing arbitrary about the enforcement of such a social norm even against a protected class.

The British Columbia Court of Appeal remitted the matter back to the arbitrator who then conducted an analysis beginning with the usual factors that are considered in mitigation of penalty. These included whether the theft was isolated and committed on the spur of the moment, the value of the goods stolen, the lack of clarity in the employer’s policies, the consistency of past discipline administered for such offence, the presence of genuine remorse and the potential for rehabilitation.

While the employee had been genuinely remorseful and had demonstrated actual rehabilitation, the thefts of liquor from the store that he managed were premeditated and occurred in some quantities over a period of time The arbitrator found that the manager’s alcohol addiction and his subsequent recovery were not sufficient factors to mitigate his dismissal “given the seriousness of his employment offence.”

Arbitrator Randall considered the Alberta Court of Appeal decision in Wright, 2012 ABCA 267 (CanLII), where the Court determined that addiction could not be erected as a defence to criminal behaviour. She also made reference to the two recent Ontario cases, one of which had overturned a decision of an Ontario Human Rights tribunal which had reinstated an employee because she had “been unable to resist the urge to divert drugs from the employer” (Walton Enterprises, (Ont. Div. Court), [2013] O.J. No. 3306) and the other, Royal Victoria [Royal Victoria Regional Health Centre, [2016] O.L.A.A. No. 373 (Raymond)], where the grievance was dismissed in circumstances where the employee had plead guilty to criminal charges that were initiated by the employer.

In dismissing the grievance in this case, arbitrator Randall stated:

Without adopting Gooding full bore, I am guided by that line of authority. My view is that much of the arbitral authority has collapsed 2 steps of the arbitral analysis. Before turning to issues of accommodation, the first issue is whether an addiction to the drug is a defence to criminal misconduct of stealing the drug from the Hospital and diverting same from patients. Obviously, the misconduct is serious employment misconduct. It is hard to imagine more serious workplace misconduct. It is an absolute breach of the employment relationship, and a breach of an RN’s essential duties to her patients.

In accord with Gooding, I don’t accept that pleading an addiction to the drug being stolen, which is to say establishing a nexus between the addiction and misconduct is, in itself, a defence to termination. There is not an iota of evidence before me of direct discrimination, to use the old nomenclature, which is what the BCCA required in Gooding.

Arbitrator Randall commented:

I have no doubt that [the employee] would not have conducted herself in the fashion she did ‘but for’ her drug dependence. Nor am I in a position to call into question [the expert’s] opinion that the grievor was addicted and not merely a ‘recreational user’. But in my view, which is consistent with the Doctor’s evidence, there are degrees of addiction. The grievor’s addiction, based on her own evidence, was not compulsive. She did not use at work. She went on vacation for one or two weeks without using. She suffered little or no withdrawal when going off the percocets. She did not provide a comprehensive narrative of her addiction that dovetailed with [her doctor’s] evidence …

The arbitrator distinguished this case from “most of the awards which make up the “arbitral consensus” in Ontario:

Many of those rely on the compulsive nature of an addiction, which compulsion I have found is not sufficiently evident here. The facts of this case also distinguish it from those awards, which are based on principles of mitigation. While the grievor is a discipline free long service employee, who ‘but for’ her addiction would have not  misconducted herself, her failure to own up to the full extent of her misconduct, together with other features of the case, disqualify her from considerations of mitigation, given the seriousness of her offence.

The issues of causation and consequence are considered in sections 14:410 and 15:303 of the Illness and Absenteeism manual and its supplement.

 

B. Recent Decisions of General Interest

1. Surveillance evidence that was inadvertently overwritten may be introduced through the testimony of a witness who had earlier reviewed the surveillance tape.

In Rippel (2009) Enterprises Ltd., 2016 CanLII 62719 (BC LA) (Saunders) the employee was terminated for drinking on the job. He was provided with a dismissal letter and pictures taken from the employer’s surveillance system. The actual images were overwritten after a period of three weeks. The union sought a declaration that the still photos were inadmissible because the source of the photos was no longer available.

There was no basis to conclude that the employer had acted deliberately. While the employer should have been more careful to preserve the source images, the natural inference was that the overwriting was simply due to inadvertence.

The adjudicator determined that his overriding task was to preserve a fair hearing. “That in turn boils down to balancing the probative value of what is prima facie relevant evidence, against the prejudicial effect of its admission.”

He concluded that any possible prejudice to the union would not likely outweigh the probative value of the images.

… The employer’s witnesses can be cross-examined in the same manner as any eyewitness about what they saw on the video from their point of view, as well as the steps that were taken to obtain still images from that video. To the extent the [photographic] images are blurry, that is a consideration that works against the employer as it bears the onus of proof. The same can be said to the extent there are ambiguities about the authenticity or probative value (including clarity) of the pictures that would likely have been dispelled by reference to the source video. In my view, these considerations may be adequately considered when assessing the weight or effect to be properly attributed to the impugned evidence.

The union’s application was denied.

The issue of surveillance evidence is considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.

2. The untruthfulness of an employee’s testimony is unlikely to have been caused by an underlying medical condition. Expert evidence in this case established that untruthfulness is not generally a symptom of depression or anxiety but rather is reflective of a pattern that begins in childhood and continues into adulthood.  

In Telus Communications Company, 2016 CanLII 61445 (ON LA) (Hornung), the union contended that the termination that was imposed should be reduced in light of the employee’s mental condition at the time.

The employee was a service technician whose work was largely unsupervised. He had been dishonest with his employer on several occasions and was ultimately terminated after having been suspended for 5 and 10 days for related misconduct. His family doctor had earlier diagnosed him with anxiety and depression, and in the report that she prepared she opined that the employee suffered from Major Depressive Disorder and Anxiety. She stated that it was more likely than not that the employee had lied as a result of his underlying clinical condition.

A specialist called by the employer testified that the employee’s medical records did not contain sufficient medical information to support a diagnosis of Major Depressive Disorder and/or Anxiety. She relied on the DSM 5 Manual. She pointed out that in order to meet the DSM 5 criteria for a diagnosis of a Major Depressive Disorder, an individual must meet “five of … nine criteria for a period of two weeks with at least one of the symptoms being either depressed mood or loss of interest or pleasure.” Her analysis was that the employee did not meet those criteria. She also testified that the employee did not suffer from any psychiatric disorder in which lying would be a symptom.

Two years prior to his termination, the employee had been seen for anxiety and depression. There was no treatment for this condition during the two years leading up to the employee’s termination. Nevertheless, the union’s expert opined that depression and anxiety are lifelong illnesses that would not go away without treatment, and it was her assumption that nothing had changed with regard to the employee’s condition over the two year period. However, as the adjudicator noted, there was no evidence to support this assumption. The adjudicator stated that based on the evidence of both experts, the employee’s “mental state cannot be extrapolated based on past or future events.”

Both experts were of the view that the employee did not suffer from a medical condition that would cause him to be untruthful. The union’s expert commented that the employee’s medical records did not explain why the employee was dishonest with the employer. Her evidence was that being untruthful is not a symptom of depression or anxiety and is a pattern that begins in childhood and continues into adulthood.

The adjudicator commented that even if it had been established that the employee suffered from a mental health condition at the time of his aberrant conduct, “it was not established that there was any nexus or linkage between any mental health condition and the conduct for which he was disciplined.” The termination was upheld.

The issue of credibility is considered in sections 13:500 of the Illness and Absenteeism manual and its supplement.

3. An employee who failed to provide a requested medical report was considered to be insubordinate and subject to discipline for such failure. 

In Winners Merchants Intl. LP, 2016 CanLII 80455 (ON LA) (Sheehan), the employee was terminated for excessive absenteeism.

The employer had introduced an Attendance Management Program, and one year later, it sought to have the employee provide extensive medical information regarding the underlying cause of her absences. The following questions were posed to her doctor:

  1. What is the general nature of the patient’s condition? Please note that we are not at this time requesting a specific diagnosis. We do need enough information to understand your answers to the balance of the questions in this letter.
  2. What are the specific restrictions and limitations applicable to the patient? Are the restrictions permanent? If not, how long do you expect the restrictions to last? Is there a way in which the restrictions and limitations could be accommodated in the workplace? If so, please provide particulars. If not, why not?
  3. What is the patient’s prognosis? Can you advise when he/she will be fit to return to work, either to modified work or to his/her original duties?
  4. Please advise as to the treatment being provided to the patient and how often you are seeing her.

The letter to the doctor resulted in a dramatic improvement in the employee’s attendance. However, the requested letter from the doctor was never provided. The employee advised that such was the case because she could not afford the $200 that the doctor would charge for his response. Shortly thereafter, the employer terminated her employment.

The employee had advised that her absenteeism was related to back and shoulder pain that she experienced as a result of a workplace accident suffered four years earlier that prevented her from performing her duties as a fork lift/swing reach driver. In addition, the employee advised that she often had to stay at home to provide care for her mother. The care needs were related to assisting her mother to go up and down the stairs of her house and to get her in and out of the bathtub so that she could take a shower.

After the employee’s termination, the union presented a letter from the employee’s doctor. It advised that the pain that the employee suffered was attributable to Degenerative Disc Disease of her neck and lower back. There were no specific restrictions to her work or any limitations to her job as a lift truck operator. Her prognosis was unchanged and uncertain. She could return to work immediately. Her treatment was medication and muscle relaxants.

The termination was rescinded and the parties entered into a last chance agreement. That agreement provided that the employee was to retain an absence rate either at or below the “facility two month average.” Five months later, she was terminated for having been in breach of that provision.

The union declined to grieve the termination. The employee filed a complaint alleging that the union had failed to represent the employee. The Ontario Labour Relations Board upheld the complaint, set aside the Last Chance Agreement, and ordered that the grievance proceed to arbitration.

The arbitrator held that the employer’s request for medical information was more than reasonable.

… the employer was well within its rights to ask for information pertaining to the [employee’s] current state of health, both for the purposes of substantiating the legitimacy of the [employee’s] ongoing absence, and the interrelated issue of whether the [employee] suffered from a disability for which she could be accommodated and thereby potentially be able to return to work. Moreover, the questions for the [employee’s] attending physician that the employer sought to be answered were straightforward and did not constitute an overreach in terms of encroaching on the privacy interests of the [employee]. Accordingly, there is no reason that the [employee] was not obligated to provide a response in a timely manner.

On the cost to the employee of the required medical report, the arbitrator stated while $200 may have been a significant amount of money to the employee, it was within her financial wherewithal to pay that amount.

The arbitrator stated that the failure of the employee to provide the requested medical information “constituted insubordination” and the “employer’s decision to terminate the [employee] was understandable and was not necessarily an unreasonable response.”

While the result would not necessarily have been different, the arbitrator failed to consider well-recognized arbitral authority to the effect that an employer cannot discipline an employee for failing to provide confidential medical information. Rather, where there is an improper refusal to provide medical information, the employer’s recourse is to hold the employee out of work, without pay, until such information is provided.

The arbitrator rescinded the termination and imposed in its place a one month suspension. The arbitrator ordered that the employee not recover any lost wages or benefits.

An employee’s obligation to provide reasonably requested medical information is considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.

4. A surreptitious cell phone recording of a personal attack by a fellow employee was held to be admissible at arbitration.

In British Columbia Public Service Agency, 2016 CanLII 77600 (BC LA) (Dorsey), the issue was the admissibility of a surreptitious recording of a fellow worker. The worker initiated the recording on his cellphone after the grievor began a personal attack on him when both were out with their crew for dinner.

In ruling in favour of admission, arbitrator Dorsey stated:

Assuming the recording is authentic and reliable, its content is relevant and may be probative. The social context in which it was recorded was related to working relationships, especially the preceding discussion of per diems, but it is remote from the trusting, cooperative, problem solving relationships underpinning the general policy favouring exclusion.

I find the balance between real or potential prejudicial effect of an unplanned recording in the not staged, relaxed situation [away from work] is outweighed by the probative value of having an accurate record of apparently unprovoked words and tone that became the subject of a complaint and the employer’s disciplinary decision.

The effect the recording might have on either the presentation of the union or employer’s case is secondary to the prejudicial effect exclusion of the recording will have on the credibility and acceptability of the outcome of this arbitration process.

The admissibility of surreptitiously recorded evidence is considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.

5. A recent Ontario decision rejected the notion that all arguably relevant documentation must be produced. Arbitrator Stout relied on an earlier decision of arbitrator Knopf which had also required that the information being sought be particularized, that the request not amount to a “fishing expedition,” that there be a clear nexus between the information requested and the positions in dispute at the hearing and that disclosure would not cause undue prejudice. To this arbitrator Stout added the additional element of proportionality.

In Toronto Transit Commission, 2016 CanLII 87623 (ON LA) (Stout), the employee had been terminated for participating in a benefits fraud scheme and then refusing to meet with the employer’s investigative services unit.

The employer’s health benefit plan was provided by an insurance carrier on an Administrative Services Only (ASO) basis. The employer paid the insurer the cost of each claim plus an administrative charge for the insurer’s adjudication services.

At issue in this decision was an application by the current and the former insurance carrier to quash production orders (or summons) that had been issued at the instance of the union on the basis that they were premature, overly broad and constituted a fishing expedition.

The arbitrator noted that the power of an arbitrator to order production of documents is found in s. 48(12)(d) of the Ontario Labour Relations Act, where arbitrators are empowered “to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases.”

Arbitrator Stout reviewed the arbitral jurisprudence which highlighted “two different viewpoints applied by arbitrators to address the issue of document production, either by order or summons …"

The first viewpoint is best described in the award of arbitrator Knopf in West Park Hospital and O.N.A. (1993), 37 L.A.C. (4th) 160 (Knopf). In West Park … arbitrator Knopf adopted a cautious and focused approach to document production. Arbitrator Knopf set out the factors for consideration at p. 167 where she stated:

… the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the board of arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the board should be satisfied that the disclosure will not cause undue prejudice.

The other viewpoint is a more “liberal” one that follows from the award of arbitrator Shime in Toronto District School Board and C.U.P.E 4400, (2002), 109 L.A.C. (4th) 20 (Shime). [In that case], arbitrator Shime adopted a more expansive approach to the production of documents, which he indicated was more consistent with that of the courts in civil and criminal matters. Arbitrator Shime was of the view that “all documents which are arguably relevant or seemingly relevant or have some semblance of relevance must be produced”.

Based on the underlying facts, it appears that an order for production of documents solely on the basis of arguable relevance could have resulted in thousands of documents having to be produced. The fact that documents that were merely relevant (the “Shime approach”), but not necessarily having, for example, any nexus to the issues likely to arise at the hearing, undoubtedly played a role in the approach coming under examination in this case.

The employer contended that the “Shime approach” was outdated, for the Rules of Civil Procedure that arbitrator Shime relied on were revised in 2010 to incorporate a stricter approach to production. “The semblance of relevance test” was replaced by the “stricter test of relevance”.

Arbitrator Stout noted that the British Columbia Labour Relations Board, in response to changes in the Civil Rules in British Columbia, had adopted a more stringent test and that arbitrator Richardson, in Nova Scotia, had specifically declined to follow the liberal approach.

Arbitrator Stout accepted that the revised Rules of Civil Procedure in Ontario reflected a more stringent test for discovery and document production and that there was good reason to depart from arbitrator Shime’s liberal approach to document production. He stated:

While I feel that the … liberal approach is no longer appropriate, I am also not convinced that a test based strictly on relevance is the answer. I am of the view that some component of discovery must be recognized and arbitrators must exercise their discretion in a balanced and reasonable manner to ensure that the parties receive a fair but expedited hearing. I also appreciate that the production of documents can sometimes lead to discussions to resolve the matter. However, document production should not be a license for a party to engage in a fishing expedition to determine if they have a case. Rather, document production should assist the parties in organizing their case so that it may be heard in the most expedited manner.

I am of the opinion that the … approach of arbitrator Knopf is a more balanced, practical and pragmatic approach to the issue of production. This approach recognizes an element of discovery, but also places limits on broad requests that can cause delay and unnecessary costs.

I agree and adopt the approach of arbitrator Knopf … with the added element of proportionality which I believe is essential to providing the parties with a fair and efficient hearing.

Arbitrator Stout then stated:

At this point, I believe it is helpful to address the proper scope of a summons to require the production of documents from a third party:

A summons to produce documents (formerly referred to by the Latin phrase subpoena duces tecum) is a legal process to compel a person to produce documents at the hearing without the need of calling that person as a witness …

The usual practice is for counsel to request a summons and it will normally be issued by the arbitrator without any great scrutiny. However, when the person served with the summons raises concerns, then the arbitrator must examine the summons in a manner similar to addressing a request for production, but within the context of a request from a non-party.

One must keep in mind that a third-party, who is issued a summons, is not a party to the proceeding. Accordingly, one must be mindful of the burden that a summons may impose as well as the privacy concerns that may arise.

Like an order for production, a summons to produce documents may be broad enough to include an element of discovery. However, it cannot be so broad as to amount to a fishing expedition or a search warrant to rummage through a third-party’s document(s).

Arbitrator Stout defined what he meant by the expression “fishing expedition”:

In my view, at a minimum, a fishing expedition is where a party seeks production of documents in order to determine if they have a case as opposed to supporting their case. Furthermore, a fishing expedition is casting a wide net of discovery as opposed to a proportionate and specific inquiry aimed at obtaining documents that assist in the determination of the issues in dispute. In my opinion, proportionality is a necessary element that must be applied in order to avoid promoting fishing expeditions.

Arbitrator Stout commented that “arguable relevance may be established by providing particulars and outlining one’s theory of the case.” He stated that “this happens all the time in arbitration proceedings, particularly when a party seeks claims files or medical records in STD and LTD claim grievances or accommodation cases.”

Arbitrator Stout agreed that the summons that he had issued to the insurers were overly broad and that there were little specific facts or allegations that would support such broad production orders. He quashed the summons and replaced them with what he considered to be more balanced orders. He noted that his decision was made without prejudice to the union seeking a new summons at a later date if it provided further and better particulars and specified the documents that they sought.

Issues related to production of documents are considered in Chapter 10 of the Illness and Absenteeism manual and its supplement.

6. An employer may not be able to establish undue hardship where the employee could have been accommodated by the provision of an unpaid leave of absence. 

In Safeway Operations (Provincial), 2016 CanLII 97607 (AB GAA) (Gunn), the employee admitted that he was suffering from an alcohol addiction. He executed a Last Chance Agreement and his immediate performance was without issue. However, after a month and a half, he ceased coming to work. The employer made efforts but was unable to contact him. After approximately four weeks, the employee was terminated for being absent without leave.

The Last Chance Agreement was focused on the employee’s compliance with his addiction-related treatment obligations. It was silent on the issue of absenteeism.

The evidence established that the employee was in an addiction treatment facility at the time of his termination, and that for the better part of the next five months he participated in several treatment programs. The employer objected to the admission of this post termination evidence. The arbitrator permitted it to be introduced, in part because it was evidence of the employee’s relapse and further, his presence at treatment facilities could also be relied on to explain the employee’s absence around the time of his termination. “The evidence of [the employee’s] struggle, both pre and post termination does shed light on the reasonableness of the dismissal.”

The employer contended that the employee was obligated to report his absence to the employer. That was not considered to be a factor, for the employee’s failure to report was attributable to his addiction to alcohol.

The employer argued that it had fulfilled its duty to accommodate the employee when it entered into the last chance agreement. The arbitrator however accepted the union’s contention that Seaspan ULC, [2014] B.C.A.A.A. No.108 stood for the proposition that “notwithstanding the automatic termination provisions contained in Last Chance Agreements, there is a statutory obligation to examine the employer’s duty to accommodate to the point of undue hardship in all circumstances.”

The employer was aware of the employee’s alcoholism, a prima facie case of discrimination had been established and the employer had failed to adduce evidence of accommodation constituting undue hardship. The adjudicator stated the employer could have accommodated the employee by providing him with an unpaid leave of absence until he was fit to return to work. The employee was reinstated approximately five months after his termination, with the date of reinstatement coinciding with the completion of the last of his treatment programs. He effectively recovered lost wages and benefits for the 14 month period preceding the issuance of the award.

The issues of accommodation and undue hardship are considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.