llness and Absenteeism.com - Summer 2015 Newsletter

In this edition you will find:

A.  Featured Case: An addicted employee will not be excused from responsibility for theft where the medical evidence fails to substantiate both the addiction and the existence of a causal connection between the theft and the addiction. 

In Complex Services Inc., 2015 CanLII 39662 (ON LA) (Jesin), a security guard employed by the employer stole money from a wallet that had been turned into the employer’s lost and found. After the employee’s termination, the union advised the employer that the employee was suffering from an addiction to narcotics, and that the theft was attributable to that addiction.

The arbitrator commented that “although there is evidence which establishes that the grievor has suffered intermittently from substance abuse [beginning approximately eight years earlier], there is little in the way of detailed medical evidence supporting either that he was suffering from the addiction at the time of the theft, [or] that, if he was suffering from such addiction, that his treatment would allow him to successfully continue as an employee free from the effects of his addiction.”

The employee testified concerning the treatment programs that he had participated in and he also provided letters of support setting forth the programs and the dates he had attended. He provided a letter from his doctor stating that he had been successfully treated for his addiction on three previous occasions, with the arbitrator commenting that “it is not clear to me how the assertion that each of these three rehabilitation efforts were successful can be reconciled with the grievor’s evidence suggesting a continuing intermittent need for rehabilitation …” Of particular importance to the arbitrator was that there was “no evidence from a doctor or from any of the treatment providers confirming that the grievor was suffering from his disability … when he took the money … Nor was there any evidence confirming that the grievor committed theft because he was under a disability. The evidence does not provide any detail regarding the timing, or extent of the addiction. or the likelihood that the grievor will put an end to the substance abuse.”

The collective agreement specified discharge as the penalty for theft. The arbitrator stated that specific penalty provisions are subject to the Code prohibition against disability-based discrimination, but only where evidence establishes that the employee was suffering from a disability and that there was a causal connection between the disability and the misconduct giving rise to the discipline.

The grievance was dismissed, with the arbitrator stating that he “was unable to find that the [employee] committed the theft because of his disability or that the employer therefore discriminated against the [employee] on the basis of his disability.”

The issue of disability and causation are addressed in sections 14:320 and 15:301 of the Illness and Absenteeism manual and its supplement.

B.     Recent Decisions of General Interest

 1. An employer’s refusal to reinstate a bi-polar employee to his management position was found to be discriminatory where the employer failed to consider whether the employee’s behaviour and performance issues were related to his disorder.

In Lambton (County), 2014 HRTO 1330 (CanLII) (Bhattacharjee), the employee suffered from a bipolar disorder that he did not disclose until after his staff began to complain that he had become abusive and  had ceased to follow the employer’s rules and policies when managing his department.

The employee was responsible for an Emergency Medical Services Department of approximately 100 paramedics. His direct reports were operational supervisors rather than frontline paramedics.

When the employee attempted to return to work from a short absence related to his bipolar disorder, the employer “refused to allow him to resume his duties, and assigned him to work in a different building on special projects. [His] depression worsened and he remained on sick leave.”

When the employee attempted to return to work for a second time the following summer, he was once again directed to work in a different building on special projects and to “answer questions about issues that had arisen with respect to his behaviour and management of [his] department. [He] then became severely depressed and remained on sick leave.”

Once the employee “had recovered sufficiently from his depression to return to work on special projects, and answer questions about the issues that had arisen,” he was notified by the employer that it had decided that he would no longer be considered for employment in his management position. In making that decision, the employer did not consider whether the employee’s behaviour and performance issues were related to his bipolar disorder.

In considering the issue of discrimination, the adjudicator found that the earlier refusals to allow the employee to return to his position were not discriminatory, for the employer “had reasonable concerns about the [employee’s] conduct and the impact on the staff and the operation of the … department, and that it was therefore prudent and non-discriminatory not to allow him to resume his duties without interviewing him and completing its investigation.”

… However, the [employer’s subsequent] decision that he would never be returned to [his position as manager of that department] was discriminatory. [The adjudicator] found that much of the [employee’s] impugned conduct was related to his bipolar disorder, but during its investigation and in its decision, the [employer] took no steps whatsoever to consider whether his conduct was disability-related, and whether his disability could be accommodated in [his] position. [The adjudicator] also found that although some of the [employee’s] previous disability-related conduct was harmful, returning him to his [management position] with accommodation would not have resulted in undue hardship to the [employer].

The adjudicator ordered that the employee be reinstated to his position “but with terms and conditions in recognition of the harm that his previous disability-related conduct caused and the challenges in accommodating his disability.” The employer was ordered to pay the employee lost income over the preceding three years and $25,000 as monetary compensation for injury to dignity, feelings and self-respect.

An employer’s obligation to assess the role that a disability played in an employee’s unsatisfactory performance and an employer’s procedural and substantive duties to accommodate are considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.

 2. An employer discriminated against a returning employee when it refused to schedule her on straight days in accordance with her doctor’s recommendations. The employee was not obligated to attempt a modified return because there was medical advice to the contrary.

In Dyna-Mig, 2014 HRTO 1457 (CanLII) (Kershaw), the employee suffered a neck injury and after a period of time, was placed on long term disability. She alleged that the employer had failed to accommodate her disability by not providing her with a straight day shift.

The employer testified that employees whose medical restrictions were being accommodated were expected to work a normal shift pattern unless they provided a clear medical reason why they could not do so or attempt to do so.

The employee provided a medical note from her family doctor, setting out her restrictions and a recommendation that she “be returned to day shifts only … because shift work proved difficult for her.” The employee’s chiropractor also wrote to advise that the employee should only work the day shift because her upper back and neck had a better chance of responding to care if she was treated after work rather than being treated and then going to work.

The employer then wrote to the doctor and the chiropractor to advise that it could not accommodate the employee on straight days because all employees worked on a shift rotation of days and afternoons. The employee’s doctor wrote back to the employer to again recommend a straight day shift “for a variety of medical reasons” and stated that the employer’s insistence that the [employee] work shift work was in conflict with his advice. The employer responded that a straight night shift could be made available, and it requested that the doctor advise if there were medical reasons that such shift would not be appropriate.

The adjudicator summarized the doctor’s response as follows:

The [employee] was unable to work a night shift for “valid medical reasons and for her best health interest” and he and the [employee] believed that it was in [her] best interests to have treatments after her work day was complete. They hoped the [employee] could begin working regular work shifts in approximately 6 months. [The employer] testified that no explanation ever was given for that opinion. The [letter] further stated if the [employer] accommodated the straight day shift request, the [employee] could return to work the next day.

The doctor completed the employer’s medical questionnaire, in which

He outlined the [employee’s] physical restrictions and noted that she had a medical condition that affected her sleep pattern and made shift work very difficult for her. He further stated that working night shift or a rotating shift would aggravate her medical conditions and worsen her physical symptoms. [The doctor] further opined the [employee] would only be able to return to work if the accommodations were made.

The following month, the employer offered the employee alternating days and afternoons for an eight week trial period, and as an alternative, offered the employee reduced hours (by starting late or leaving early) if she were to attempt the “B” shift (two weeks of days followed by two weeks of evenings). Those offers were refused.

The doctor provided a subsequent letter two months later. This was the first time that the employer learned that the employee suffered from chronic pain syndrome, myofascitis (inflammation of a muscle and its fascia), and fibromyalgia.

The employer testified that even if an employee’s “doctor states the person cannot try a proposed work plan, the [employer] expects them to attempt it. If the attempt was unsuccessful, then the [employer] would consider modified duties again at that point … In the [employee’s] case the medical information was not sufficient to substantiate the [employee’s] claim she could not work shift work and she had not tried to do so … There was no medical information to show the [employee] would injure herself if she worked afternoons.”

The employee subsequently worked for three weeks of day shift the following month, after which she advised the employer that she was incapable of working. During that three week period she did not raise any issue with respect to her inability to work. Shortly thereafter, her doctor advised that she was now off work for medical reasons for an indefinite duration.

The adjudicator stated:

Whether the problems with anything but a day shift resulted from the pre-existing neck injury or from fibromyalgia is not the issue. At least as a starting point, there is no requirement the [employee] disclose her medical condition to engage the accommodation process, simply that she disclose that she has restrictions arising from a disability.

The [employer] submitted the [employee] could have had a regular sleep pattern by working the “B shift” because she still would get night time rest. This overlooks the family doctor’s advice that the shift work itself was difficult for her and the day shift helped her symptoms.

I accept that there are circumstances where it may be appropriate for an employer to make inquiries about the specific nature of an employee’s medical conditions (for example to better understand what type of options may be available to accommodate restrictions arising from the medical condition, or whether accommodation is necessary at all) but in this case, while the [employer] legitimately made further inquiries and received further information, it continued to ignore the recommendations of both the family doctor and the chiropractor …

While accommodation is a collaborative process and the employee must cooperate in the process … and it is generally implicit in the duty to cooperate that an employee will at least attempt a modified return to work before ruling it out as an inappropriate accommodation …, this is not the case where there is medical advice to the contrary as here.

… I find the [employer] discriminated against the [employee] by failing to accommodate her. At no time did it offer the [employee] a straight day shift as recommended by her family doctor, a position made more difficult to comprehend in light of [the employer’s] evidence there would have been no adverse effect on production and there was no reason the [employee] could not have worked a straight day shift other than the [employer] wanted to move all employees to a rotating shift because of complaints of unfairness from other employees.

The adjudicator awarded $7,500 for injury to dignity, feelings and self-respect along with wage loss benefits to be calculated. In addition, human resources and management personnel were ordered to complete the Commission’s on-line human rights training. “Code cards” setting forth Code rights were to be posted throughout the plant; and the employer was to retain a consultant to assist in developing a human rights policy, with the policy to be distributed to all employees within six months of the date of the decision.

An employee’s obligation to facilitate an accommodation, as well as the extent to which a physician can dictate an appropriate accommodation, are considered in sections 14:432 and 14:604 of the Illness and Absenteeism manual and its supplement.

 3. An employee whose evidence lacked credibility was reinstated where the employer failed to establish that it had provided the employee with appropriate accommodation in light of his disability-related needs.

In University Health Network, 2014 HRTO 1550 (CanLII) (Eyolfson), the employee had been off work because of back pain. During his second such absence, the employer retained an investigator because the employee had not been forthcoming with information concerning his medical condition. Following receipt of the investigator’s report, the employee was terminated for “engaging in activities that were in clear conflict with his medical restrictions while collecting paid sick leave from the [employer].”

The adjudicator found that the employee’s back condition constituted a disability during the relevant period, and that his medical restrictions required accommodation in the workplace.

The employee’s allegations regarding his having requested modified work were rejected by the adjudicator as being “far-fetched and lacking in credibility …” The employee testified that he spoke to his manager concerning the failure to provide modified work. The employer had advised, at the outset of the hearing, that the manager would testify that modified work had been provided at all times. On the second day of the hearing, well after the employee had completed his testimony, the employer advised that the manager would no longer be called as a witness.

While the adjudicator found that the employee’s evidence was somewhat lacking, he also found that the employer’s evidence as to whether the employee had been accommodated in light of his medical restrictions was even more lacking:

While the [employer] submits that modified work was provided to the [employee] at all material times, there is simply no evidence before me that the [employee’s] job duties were modified in any way. There is also no evidence before me as to what the [employer] communicated to the [employee], if anything, with respect to the job duties he was to perform, or how he was to perform his job duties, during the time that he was to be accommodated.

The adjudicator stated that he was not satisfied that the employer provided the employee with appropriate accommodation in light of his disability-related needs.

The employee’s evidence was essentially uncontradicted. He was absent from work for reasons related to a disability, his disability-related absence was clearly a factor in the employer’s decision to terminate his employment, and the employer had not established a reasonable non-discriminatory explanation for the termination of the employee’s employment.

The employee was denied compensation for lost income, for he had made no effort to mitigate his losses by seeking alternate employment. The sum of $15,000 was awarded as damages to the employee’s dignity, feelings and self-respect.

An employer’s obligation to establish that it properly considered the need to accommodate an employee, and the impact that the employee’s dishonesty can have on the accommodation process are considered in sections 14:420 and 14:432 of the Illness and Absenteeism manual and its supplement.

 4. An employee who admitted that she had stolen and then ingested a patient’s narcotic medication was unsuccessful in establishing that her misconduct was related to an addiction.  

In Riverside Health Care Facilities Inc., 2014 HRTO 1621 (CanLII) (Sanderson), the employee resigned her employment, rather than be terminated, after she admitted that she had stolen and then ingested a patient’s narcotic medication. She did not raise addiction as an explanation for her behaviour, but rather said that she had no explanation for what she had done.

The employee proceeded by way of a human rights complaint. She alleged that she was addicted to alcohol (for which she had previously sought treatment), and that her alcohol addiction led to her misconduct.

The adjudicator found that the admissible evidence did not support a conclusion that the employee’s addiction to alcohol caused her to steal patient medication. She was not under the influence at the time, and there was no evidence that her judgement was impaired. She was unsuccessful in establishing that “her misconduct in stealing narcotics was related to her addiction to alcohol.” Therefore, accommodation was not an issue.

The role that an employee’s addiction may play in upholding disciplinary penalties is considered in chapter 15 of the Illness and Absenteeism manual and its supplement.