llness & Absenteeism - September 2020 Newsletter
Welcome to the September, 2020 issue of the Illness and Absenteeism newsletter. In this issue, you will find:
A. Featured Case: An employee who claimed to be ill and in need of accommodation was unsuccessful in setting aside a termination predicated on a failure to return to work upon expiration of an authorized leave of absence. [click here to read more ]
B. Other Decisions of General Interest
- An employer’s motion to adjourn a COVID-19 termination grievance was granted where the days sought to be adjourned could be re-scheduled within the dates that had already been scheduled for the hearings. [click here to read more]
- An employee who was absent for a portion of a qualifying holiday shift was not disqualified where the clause merely provided that the employee was obligated to work such shift. [click here to read more]
- An employer’s “COVID-19 self-isolation policy” that affected employees living on the American side of the border could not be applied without extending individual accommodation to affected employees. [click here to read more]
- An employee’s termination pursuant to a last chance agreement was set aside after it was established that “workplace bullying” relating to the employee’s ethnicity and place of origin were a factor in his termination. [click here to read more]
- An employee who failed to undergo an assessment arising from an arbitral reinstatement was found to have abandoned his employment. That was to be distinguished from an abandonment of the grievance for, as the arbitrator commented, it is the union, not the employee, that is a party to the proceedings and therefore has carriage over the grievance. The union was however entitled to be heard with regard to any residual issues. [click here to read more]
A. Featured Case: An employee who claimed to be ill and in need of accommodation was unsuccessful in setting aside a termination predicated on a failure to return to work upon expiration of an authorized leave of absence.
In Interim Place, 2020 CanLII 17782 (ON LA) (Bernhardt), the employee had been absent from work for over one month. In her physician’s return to work note, he suggested that it would be helpful if the employee could be accommodated and given a four day work week. The employer requested further information but her physician’s response merely advised that the employee’s limitations required that the employee needed to work fewer hours for a period of three or more months.
In subsequent discussions, the employee stated that she was experiencing workplace stress but did not want to share a diagnosis. The employer advised that a diagnosis was not required, but that more medical information had to be provided to establish that her stress was based on a disability. Alternatively, the employee could apply for a part-time position. The employer subsequently authorized a one year leave of absence. Toward the end of that leave, the employee wrote and advised that she would like to meet to discuss her return to work plan and that she was requesting accommodation based on her medical health and the needs of an elderly family member.
The medical information provided to the employer merely advised that the employee was unable to return to work “for medical reasons”. The physician provided a further note seven weeks later, in which he advised that the employee could return to work in four months once she was provided with an appropriate accommodation plan which allowed for adequate self-care and time off to care for her elderly father. When the employee later advised that her return would be delayed by another month, the employer wrote to inform her that she was now on an unapproved absence.
The employee subsequently provided a completed Request for Accommodation form which merely stated that she was seeking accommodation related to disability and family status. The accompanying physician’s note cleared her to return to work “on a gradual integration, part-time basis (3 days per week), into ‘the same position’, once provided with an appropriate accommodation plan” …
In further correspondence with the employee’s physician, the physician advised that he could not disclose details of the employee’s symptomology “as she had not consented to release of medical information at this point”. The employer then wrote to the employee to again state that she was off work on an unapproved leave; that the employer was about to make a decision concerning her employment status, and that the employee should immediately provide any further medical information that she might have.
Shortly thereafter, the employer terminated her employment. It relied in part on a collective agreement provision which stated that the employee would be terminated if she “[failed] to return to work upon the expiration of an authorized leave-of-absence unless a reason satisfactory to the [employer] is given”. The employer contended that in the alternative, it had just cause to terminate her employment as per the management rights provision in the agreement.
Arbitrator Bernhardt commented that the issue was whether the employee’s termination was justified, either as an administrative termination under the collective agreement and/or because there was just cause for her termination. The starting point was whether the employer had breached its Code obligation to accommodate the employee. She stated:
I agree with the Union (and the case law that they presented on this issue) that automatic termination provisions cannot be used to circumvent an employer’s duty to accommodate under the Code. As [was stated in the majority judgement] of the Supreme Court of Canada [in McGill University Health Centre, 2007 SCC 4 (CanLII):]
Reasonable accommodation is thus incompatible with the mechanical application of a general standard. In this sense the Union is correct in saying that the accommodation measure cannot be decided on by blindly applying a clause of the collective agreement. The arbitrator can review the standard provided for in the collective agreement to ensure that applying it would be consistent with the employer’s duty to accommodate.
… In this situation … the employer did consider and fulfilled their duty under the Code prior to terminating the [employee] for her absences, as they repeatedly sought clarification of the medical information that was provided, only to have [the employee] withhold her consent for her physician to answer the Employer’s questions.
The arbitrator then considered whether the employer could also have terminated the employee for just cause. She decided in the affirmative:
The Employer’s duty was to inquire once they were aware of the possibility that Code-based accommodation might be required. They fulfilled that duty by their multiple requests for relevant medical information, which the [employee] did not provide.
Without such information, the employer took the position that once the [employee] refused to provide the specified medical information, she was absent from work without a valid reason, [in that] she had not established the need for accommodation. She was therefore terminated for cause.
The arbitrator further stated that “while it might have been helpful had the employer sought a third-party medical opinion, it was not necessary in these circumstances”, for the employee had refused to give her consent for the provision of the necessary information. “This was to her detriment as after having been given one last chance to produce the information, the employer was justified in breaking the stalemate by terminating her employment”.
The termination was upheld.
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B. Other Decisions of General Interest
1. An employer’s motion to adjourn a COVID-19 termination grievance was granted where the days sought to be adjourned could be re-scheduled within the dates that had already been scheduled for the hearings.
In Scarborough Health Network, 2020 CanLII 30377 (ON LA) (Newman), the employer sought to adjourn a termination grievance by reason of circumstances related to the coronavirus-19 pandemic. The hearing was adjourned, with the parties being advised that the adjourned dates were to be rescheduled prior to the last of several pre-scheduled hearing dates.
In Rockshield Engineered Wood Products Inc., 2020 CanLII 32732 (ON LA) (Dissanayake), the arbitrator considered three different grievances involving employees who had worked for less than a complete qualifying shift under a “Holidays with Pay” article. The clause provided that in order to qualify, the employee must have worked “the last scheduled shift prior to the holiday and the first scheduled shift following the holiday unless his return to work is prevented by a circumstance beyond his control …”
All three employees were scheduled for 8 ½ hour qualifying shifts. Of the three, one missed the first half of his returning shift; the second reported three hours late on his returning shift, and the third had left and then returned during his last scheduled shift, such that he missed 1 ½ hours of work.
The arbitrator found that each of the employee’s attendance on the relevant shift was sufficient to qualify them for payment for the holiday:
Over the years, arbitrators have expressed divergent views on the application of qualifying shift provisions where the employee attends only part of the qualifying shift. Some have been of the view that where the provision uses the words “the shift”, it means the full shift the [employee] was scheduled to work … More recently, arbitrators have been willing to award holiday pay, even in the absence of such explicit language, where the employee had a reasonable excuse or explanation for missing part of the qualifying shift such as having permission from management … or the late reporting to work was due to having to care for her child and the [employee] had followed the proper call-in procedure …
The arbitral jurisprudence has since evolved to a point that most arbitrators recognize that a requirement to work the day or shift may be satisfied if the employee had substantially complied with the proviso by making more than a token attendance … I concur with this approach. It is consistent with a purposive interpretation of qualifying days/shifts provisos. Except in instances where an employee only makes a token appearance at work, missing part of the shift cannot reasonably be characterized as an extension of the holiday, the mischief the proviso is intended to address. The parties could not have intended that missing any part of the qualifying shift, however small it is, would disqualify the employee from receiving holiday pay. In the absence of clear language that an employee must work the full shift in order to be eligible for holiday pay, it is not reasonable to infer such an intention from the use of the words “the shift”.
Arbitrator Dissanayake commented that there is however a basis in the case law for the proposition that the concept of substantial compliance does not apply where the employee’s absence/lateness was without justifiable reason. However, he rejected that proposition:
In my view … the more reasonable interpretation, and the one I adopt, is that where an employee has substantially complied with the qualifying shift proviso, he/she does not lose the entitlement to holiday pay, whether or not the absence/lateness is excusable or justified. Holiday pay is a substantive benefit negotiated in the collective agreement. The holiday pay provision sets out the conditions to be met for eligibility for the benefit. The purpose of those conditions, that is the qualifying days proviso, is to prevent employees extending the holiday. The purpose is not to discourage absenteeism generally … Lateness/absenteeism without justification, on a qualifying day or any other day, is not acceptable, and may justify discipline in accordance with the usual legal principles … Culpability becomes relevant only if it involves deception or falsification related to the holiday pay entitlement or was intended to defeat or circumvent the very purpose of the qualifying shift proviso. In such circumstances, the employee may be subject to discipline, and may also be denied holiday pay.
All three grievances were allowed.
3. An employer’s “COVID-19 self-isolation policy” that affected employees living on the American side of the border could not be applied without extending individual accommodation to affected employees.
In Algoma Steel Inc., 2020 CanLII 48250 (ON LA) (Jesin), the grieving employee lived on the American side of the Canadian border and would commute to and from work in Sault Ste. Marie on a daily basis.
After the onset of COVID-19, the Canadian government enacted an emergency order pursuant to its authority under the federal Quarantine Act. Under that order, individuals who enter Canada from the United States must self-isolate for a period of 14 days. A regulation enacted under that order exempted certain categories of persons who must cross the border regularly to go to their normal place of employment. The employee here fell within that exemption.
The employer had also implemented a policy that any of its employees who crossed the border must self-isolate for 14 days. It did so as an extra precaution and for the safety of its employees. The policy did not provide for any exceptions.
The employer asserted that its policy was reasonable in that it met the four elements of the KVP case. The policy did not violate any of the provisions of the collective agreement; it was clear and unequivocal; and it was widely distributed. The arbitrator stated:
Although it would have been generally reasonable and in compliance with the collective agreement to establish the general policy there are circumstances in which it might be unreasonable to apply the policy without accommodation. In this unusual case, the policy has forced [the employee] to make the difficult choice of having access to his two young children or to make a living. In my view it was not reasonable to have forced [the employee] to make this choice without determining whether there are conditions in which [the employee’s] ability to work while living in [northern Michigan] could be accommodated. Indeed, in my view, s. 5(1) of the [Human Rights Code] of Ontario requires the employer to consider accommodation in these circumstances.
The arbitrator then postulated that such accommodations might include being assigned to work distant from other employees or having to wear masks or adopt other social distancing protocols. It might also have been reasonable to have the employee undergo COVID-19 testing at regular intervals while in Ontario. The arbitrator determined that in order to balance the competing legitimate rights of the employee and the obligations of the employer, the employer should permit the employee to work without requiring him to self-isolate. The employer would however be free to assign the employee to work those shifts which it deemed necessary to minimize safety risks. The employer could also require the employee to wear such personal protective equipment; and to comply with social distancing and sanitizing protocols which it deemed reasonable in the circumstances. In addition, the employer could consider, in consultation with the union, other terms that the employee would have to follow such as those regarding testing and travel.
The arbitrator remained seized of the matter.
4. An employee’s termination pursuant to a last chance agreement was set aside after it was established that “workplace bullying” relating to the employee’s ethnicity and place of origin were a factor in his termination.
In Redpath Sugar Ltd., 2019 CanLII 3029 (ON LA) (Gedalof), the employee was subject to a last chance agreement which provided for his discharge in the event he was found guilty of unsatisfactory job performance, as determined solely by the employer.
The union contended that the last chance agreement was unlawful and unenforceable and that the employee had been terminated for arbitrary, discriminatory and bad faith reasons, including on the basis of ethnic origin and place of origin contrary to the Ontario Human Rights Code. The arbitrator heard that the employee had been continually belittled by his supervisor in a manner that could only be described as workplace bullying. While the supervisor also berated other employees, he would repeatedly target the grieving employee for abuse on the basis of his ethnic origin. He had allegedly called the employee a “gypsy” and told him that he should have “stayed in his village”. The arbitrator concluded that the supervisor held “a particular antipathy toward the grieving employee at least in part because of his status as an immigrant from a non-English speaking country. The supervisor “expressed that antipathy and discriminated against the [employee], through at least the occasional use of ethnic slurs and by targeting him for differential treatment including belittling him in front of his co-workers”.
The employee testified that he could not understand the specific terms of the last chance agreement and that he did not read the document. Rather, he understood that if he did not sign the last chance agreement he would be fired.
The arbitrator found that the employee’s termination was in accordance with the strict terms of the last chance agreement and would normally not be arbitral. He stated that he accepted the employer’s argument that while discriminatory treatment will normally give rise to a remedy, the remedy would not include overturning the termination (especially in the context of the last chance agreement) if the discriminatory treatment was not a factor in the termination. However, the arbitrator concluded that the union had met its onus in establishing that the employee’s ethnicity and place of origin were a factor in his termination.
The employee was reinstated with compensation for lost wages. Any return to active duty was subject to the employee’s medical condition and the duty to accommodate. The issue of damages was remitted to the parties.
5. An employee who failed to undergo an assessment arising from an arbitral reinstatement was found to have abandoned his employment. That was to be distinguished from an abandonment of the grievance for, as the arbitrator commented, it is the union, not the employee, that is a party to the proceedings and therefore has carriage over the grievance. The union was however entitled to be heard with regard to any residual issues
In Ottawa (City), 2019 CanLII 67571 (ON LA) (Sheehan), the grievance alleged a failure to accommodate, followed by an improper termination. The employer sought dismissal of the grievance.
The arbitrator had earlier issued an interim order in which he provided the employee with one last opportunity to be assessed with respect to available positions, stating that if a suitable position was not available, “there would be no further obligation upon the employer to maintain the employment relationship and the employee’s earlier termination would be confirmed.”
The employee failed to cooperate and instead filed a Human Rights complaint regarding the same issues. The employer sought to have the grievance dismissed on account of abandonment and an abuse of process on the part of the employee. The arbitrator commented on the elements of the employer’s motion:
Abandonment and abuse of process are two interrelated but distinct concepts … It is a trite but necessary observation that pursuant to the provisions of the collective agreement, it is the union, not the [employee] that is a party to [the] proceedings and therefore has carriage over the grievance … The failure of the [employee] to attend a hearing with respect to a grievance filed on his/her behalf will not necessarily give rise to a finding that the grievance has been abandoned, since the decision-making authority with respect to the litigation of the grievance ultimately rests with the union …
[Nevertheless], a determination that the grievances should not be dismissed on the grounds of abandonment does not address … the central thrust of the employer’s position – the purported abuse of the arbitration process on the part of the [employee] … Upon initiating the grievance arbitration process by filing grievances, and with those grievances being referred to arbitration, the [employee] was obligated to abide by the expectations and requirements of the arbitration process and not engage in “forum shopping”.
Arbitrator Sheehan stated that the seminal case with respect to addressing the dismissal of a grievance on account of an abuse of process was the decision in Budget Car Rentals Toronto Limited, (2000) 87 L.A.C. (4th) 154 (Davie). There arbitrator Davie noted:
In my view, an arbitrator should not lightly dismiss a grievance by reason of any “abuse of process”, and outright dismissal of a grievance by reason of an alleged abuse of process should only occur in the clearest cases. In exercising the jurisdiction or discretion to dismiss a grievance by reason of an abuse of process however, it must be remembered that the grievance and arbitration process was established to settle employment related disputes in a relatively expeditious and inexpensive manner. Within this context it is reasonable to expect that the [employee], who is a party to that process, cooperate with reasonable requests made of him by his union, attend and participate in the hearing set up to deal with his grievance, and comply with the directions or orders of the arbitrator. In this case, the [employee’s] failure to attend, and his subsequent failure to comply with the order made in the interim award, has resulted in additional time and expense, to both the union and the employer. …
The [employee] knew what was expected of him – first that he attend the hearing and thereafter that he provide certain documents, and an explanation for his failure to attend [the earlier] hearing. He also knew the consequences which would flow if he did not meet these expectations. He has been given every reasonable opportunity to comply but failed to do so …
… An employee adopting such an approach risks the consequences that may flow from the decision not to continue participating in the arbitration process.
The employee’s conduct, by failing to attend a scheduled hearing; by failing to comply with the interim order; and by repeatedly denigrating the arbitration process, constituted an abuse of process.
While the arbitrator stated there was a relatively compelling basis to grant the employer’s motion to dismiss, he elected to confirm the employee’s termination and to permit the union to be heard with regard to any residual issues. Such issues were to be considered based on the existing evidentiary record and were to be heard by way of a conference call.