Illness and Absenteeism.com - Summer 2017 Newsletter

In this edition you will find:

A. Featured Cases:An arbitrator will not generally interfere with the thresholds for entry, progression or exit that are set forth in an attendance management program.    [Click here]

B. Recent Decisions of General Interest

1. A pregnant employee who was summarily terminated because of performance concerns was awarded three months lost wages plus $25,000 in general damages for loss of dignity.    [Click here]
2. An alcoholic employee who refused to sign a last chance agreement containing an abstinence clause was terminated after he breached an abstinence condition that was included in terms that were unilaterally imposed by the employer. The termination was upheld. The clause was responsive to the employee’s disability and the employee had been accommodated to the point of undue hardship.    [Click here]
3. An independent investigation into an employee’s complaint of harassment was found to be fatally flawed when the investigation focused primarily on complaints that a supervisor and witnesses had levied against the employee whose complaint was being investigated.    [Click here]
4. A termination for innocent absenteeism was set aside because the many warnings that the employee had received had not risen to the level of “a final warning spelling out the consequences with an end clearly in sight.”    [Click here]
5. A termination for lateness was upheld pursuant to a consent award that provided for termination in the event of any proven employment offence.     [Click here]
6. The limitations that arbitrators have imposed on an employer seeking medical information have been found to be applicable to disability insurance forms developed in collaboration between the insurance industry and various medical associations.   [Click here]

A. Featured Cases: An arbitrator will not generally interfere with the thresholds for entry, progression or exit that are set forth in an attendance management program.

In Centre for Addiction and Mental Health, 2016 CanLII 57095 (ON LA) (Goodfellow), the union had challenged the propriety of the threshold for triggering the entering and moving up steps of the employer’s Attendance Support Policy. The threshold figure that was the subject of the challenge had been set at “exceeding three incidents or 37.5 hours in the first or second six months of any one year.”

The union contended that the threshold ought to be ten or more days or shifts over a 12 month period, with no reference to incidents. It chose that figure based on the fact that employees were eligible to earn up to nine sick days per year.

The arbitrator rejected the union’s submission that employees should be entitled to use the number of days of sick leave that they have earned, and that the establishment of a lower threshold is unreasonable, for it would inhibit such use:

… The fact that parties may have agreed that employees are entitled to accrue a specific number of paid sick days per year does not mean that they have also agreed, expressly or impliedly, that taking that number of sick days, or any other number, is not an issue deserving of attention in the form of an attendance management policy.

The grievance was dismissed, with the arbitrator stating that “I am unable to find the threshold set out in the Policy, in whole or in part, to be unreasonable or lacking in a rational basis.”

While, in my assessment, there was certainly room for the employer to have established a different threshold – one with elements that might be seen as no less reasonable – that is not the test. The question is simply whether the employer has failed to set a reasonable threshold. In my view, the threshold set out in the Policy meets the necessary test.

Similarly, in Sunnybrook Health Sciences Centre, 2016 CanLII 44082 (ON LA) (Knopf), the union challenged the employer’s revised Attendance Support Program (ASP). The thresholds to trigger attendance counselling meetings were, for full-time employees, absenteeism in excess of three separate incidents and/or 45 hours in a six month review period, and for part-time employees, absenteeism of three incidents in a six month review period.

The Program also provided that consideration of individual circumstances would be appropriate where the period of absence that triggered the threshold represented a singular and/or unique occurrence that was outside of the good attendance record for that employee. The thresholds were to be reviewed and adjusted annually, as necessary, to ensure a “productive ASP”.

In considering the union’s objection to the thresholds for entry into and exiting the Program, arbitrator Knopf acknowledged that while the program could have been designed differently, “it is not an arbitrator’s role to design a better pattern or to veto one if there is an option that s/he thinks might be better. The arbitrator’s role is to assess the Program’s reasonableness.”

Arbitrator Knopf adopted the comments of arbitrator Surdykowski in York University [York University v. Y.U.S.A., 221 L.A.C. (4^th) 48 (Surdykowski)], wherein he stated:

There is nothing wrong with establishing a threshold for entry into an attendance management program. A threshold for entry is both fundamental to the proper structuring and essential to the proper administration of an attendance management program. An appropriate threshold for entry operates as an objective standard against which employee absenteeism can be measured and satisfies the KVP test. The management right to establish an attendance management program necessarily includes the right to establish an absenteeism threshold which triggers the application of the attendance management program.

Many attendance management program decisions focus on the threshold for being entered into the program. The cases make it clear that there must be a rational basis for an attendance management program threshold but that there is nothing prima facie unreasonable about a triggering threshold that applies across all of an employer’s occupational groups, whether or not it is tailored or tied to an average or other rate of absenteeism within any of the employer’s occupational groups. Few decisions have considered the reasonableness of standards for moving backwards and eventually exiting an attendance management program and those that have are case specific and offer little general guidance …

An attendance management program which is prima facie reasonable can be challenged on the basis that it is not actually reasonable. But such a challenge must be based on evidence, not on suspicion or surmise.

In both cases, the union failed to demonstrate that the thresholds for entry, progression or exit from the Attendance Support Program were unreasonable.

B. Recent Decisions of General Interest

1. pregnant employee who was summarily terminated because of performance concerns was awarded three months lost wages plus $25,000 in general damages for loss of dignity.

In Ramada Inn and Suites (Cold Lake), 2016 AHRC 11 (CanLII) (Oviatt), the complainant was a housekeeper who alleged, in part, that she was discriminated against on the ground of pregnancy.

At the time of hire, the employee was pregnant but her condition was not yet visible and she did not advise the employer of her pregnancy.

Approximately 3 ½ months after she started her employment, the manager provided the employee with a formal letter of reprimand regarding her job performance. No issues had ever been raised with the employee prior to that point and she adamantly denied any deficiencies in her performance. The letter referenced the employee’s pregnancy in the following terms:

… [The head office has said that] if this employee is not able to perform her duties in the properly and timely manner because of her pregnancy then I suggest you to inform her to find the other employment or leave.

At this point, the employee was seven and one half months pregnant. She testified that her pregnancy did not interfere with her employment duties and that the reprimand had been very upsetting. The employee heard nothing further, until three weeks later when a member of the front desk staff delivered a sealed envelope that contained her letter of termination.

The Record of Employment that was subsequently provided to the employee indicated that she had quit her employment.

The adjudicator commented that “no evidence was adduced to suggest that the [employer] considered any form of accommodation for the [employee] if it believed that the [employee’s] pregnancy was impacting her ability to perform her duties. The only solution to these alleged performance deficiencies arising from her pregnancy was for her to find another job.”

The adjudicator found that there was no evidence of actual performance concerns and that the only reason for the letter of reprimand and the termination was the employee’s pregnancy. She further stated that had there been performance concerns arising from the pregnancy, the employer was obligated to accommodate any impact that the pregnancy may have had on the employee’s ability to perform her job.

In assessing damages, the adjudicator awarded the employee lost wages from the date of her termination until the start of her anticipated maternity leave. She also ordered that the employer pay the employee $25,000 in general damages for loss of dignity.

In a subsequent decision [Ramada Inn and Suites (Cold Lake), 2016 AHRC 17 (CanLII) (Oviatt)], the adjudicator considered the manner in which the wage loss award was to be determined. The employer contended that it was improper for the employee to recover both lost wages and employment insurance benefits for the same period. The adjudicator disagreed, stating that there was no reason to discount the wage recovery, and that with respect to the Employment Insurance benefits, the employee would have received them in any event, but at a later date.

2. An alcoholic employee who refused to sign a last chance agreement containing an abstinence clause was terminated after he breached an abstinence condition that was included in terms that were unilaterally imposed by the employer. The termination was upheld. The clause was responsive to the employee’s disability and the employee had been accommodated to the point of undue hardship.   

In Diageo Canada Inc., 2016 CanLII 35396 (ON LA) (Steinberg), the employee was an alcoholic who was terminated for violating terms and conditions of employment that had been imposed upon him by the employer after he refused to sign a last chance agreement. These included an abstinence condition. The arbitrator stated that

It was a proper exercise of the employer’s statutory duty to accommodate the [employee’s] alcoholism and was imposed as part of a long-standing process of accommodation. The condition was not unreasonable because it was directly responsive to the [employee’s] disability. In light of the long history of steps to accommodate the [employee], it is not clear what more the employer could reasonably have done.

The [employee] was aware of the abstinence condition and understood the consequences of not abiding by it. He simply didn’t agree with it or think it was a “big problem” to violate it.

[His] evidence and his attitude to his disability and the employer’s attempts to accommodate him make abundantly clear that any further accommodation would be fruitless. He has demonstrated that he cannot be forthright about his actions and is not yet ready to be accountable for his actions.

The employer had accommodated the employee to the point of undue hardship and there were no mitigating factors that would support any further accommodation. Of significance was that the employer permitted the employee to attend a residential treatment program on three separate occasions for many weeks at a time in order to receive treatment.

The grievance was dismissed.

3. An independent investigation into an employee’s complaint of harassment was found to be fatally flawed when the investigation focused primarily on complaints that a supervisor and witnesses had levied against the grievor whose complaint was being investigated.

In Toronto District School Board, 2016 CanLII 36349 (ON LA) (Stout), the grievor challenged the sufficiency of an employer-initiated independent investigation of his complaints alleging discrimination and harassment based on race.

The adjudicator concluded that the investigation was inadequate in that it morphed into an investigation of the grievor rather than his complaints:

The investigation was fatally flawed as it failed to investigate the Grievor’s allegations. Instead, the Investigator became distracted by complaints against the Grievor raised by [a supervisor] and anonymous witnesses. The [Supervisor’s] and anonymous witnesses’ complaints about the Grievor are very serious allegations, that if proven to be true should be addressed by the [employer]. The problem is that these very serious complaints were not properly brought to the attention of the Grievor so that he could properly respond.

In my view, the Grievor was entitled to have his complaint investigated. If during the investigation other complaints were raised, then those complaints also should have been investigated properly. In this case, it appears that the Investigator became side tracked and focused solely on the [supervisor’s] and witnesses’ complaints about the Grievor. In the end, the Investigator failed to properly investigate the Grievor’s complaint and failed to provide the Grievor with a fair opportunity to refute the allegations against him.

Arbitrator Stout stated that the minimum procedural fairness required in an investigation was outlined by arbitrator Pam Picher in Canada Post Corp. [2003] C.L.A.D. No. 624, where she set forth the prerequisites as follows:

- That the investigation be conducted in a timely manner;

- That it be performed by a qualified investigator;

- That the Complainant be entitled to be involved in the process by providing a full statement of complaint, as well as the names of individuals and additional information that might assist in establishing her complaint.

- That the respondent be entitled to be involved in the process by providing a full statement of defence, including the names of individuals who could supply information that would assist his defence as well as additional information that may be deemed to be helpful.

- That the Complainant and the Respondent be accorded essentially equal or balanced treatment respecting such important matters as the opportunity to provide the names of person[s] who could support their respective positions, as well as the opportunity to know the content of and rebut or reply to statements made by individuals that are adverse to their respective positions;

- That overall, the investigation be carried out in a manner that is in good faith, independent, thorough, balanced, fair, unbiased and free of arbitrariness or discrimination; and

- That the Complainant and the Union (since she requested assistance from the Union), be advised of the progress of the investigation as well as its conclusions.

Arbitrator Stout directed that the employer retain the services of a different independent third party to conduct a proper investigation of the Grievor’s complaint and any complaints raised by the [supervisor] and witnesses to the Grievor’s complaint.

The employer had transferred the Grievor to a different school while the investigation took place. The arbitrator accepted that a temporary transfer was appropriate in that it was not a reprisal but rather necessary to defuse a deteriorating situation:

In situations involving allegations of harassment, health and safety concerns, bullying or criminal behaviour, an employer has the right to address the situation by temporarily removing an employee from the workplace and placing them at a different work location pending an investigation and final resolution. The movement of an employee can in many instances defuse a volatile situation and provide an employer with the time to conduct a proper investigation and determine a more permanent resolution.

4. A termination for innocent absenteeism was set aside because the many warnings that the employee had received had not risen to the level of “a final warning spelling out the consequences with an end clearly in sight.”

In Saskatchewan Gaming Corporation Casino Moose Jaw, 2016 CanLII 39709 (SK LA) (Hood), the employee was terminated for innocent absenteeism pursuant to an Attendance Support Program.

The Absenteeism Rate Threshold was established for both unionized and non-unionized employee groups in January of each year. The terms and conditions of work for the unionized and non-unionized groups were said to be sufficiently distinct enough to require a separate determination of each group’s absenteeism rate. The acceptable rate during the relevant period was nine percent.

The final step of the program provided that where the employee’s absences had been clearly excessive; that where there was no likelihood of improvement in the future; and that where the duty to accommodate had been exhausted, the employment relationship would be terminated in accordance with the collective agreement and the employer’s Gaming policy.

The employee had been hired as a part-time casino dealer. Her absences were related to caring for her elderly mother and to continuing migraine headaches.

The arbitrator found as follows:

1. The employee’s absenteeism was excessive. The threshold rate was reasonably and fairly determined under the policy.
2. On the requirement to warn the employee that a lack of improvement could lead to her termination, the arbitrator noted that while [inShelter Regent Industries(2003), 124 L.A.C. (4^th) 129 (Ponak)], “the warning test on absenteeism formulated by arbitrator Ponak uses the words “could” result in discharge …,” such a warning was not adequate in these circumstances. Arbitrator Hood stated:

The employer, at best, provided the [employee] with “mixed messages.”  [She] knew this was a serious matter, but the employer appeared content to hold the same reviews, quarter after quarter, without any end in sight. An adequate warning is a final warning spelling out the consequences with an end clearly in sight. No such warning was provided.

… Notice is a matter of fairness to the employee. Fairness dictates a final, clear and effective warning before termination: there can be no rug pulled out from under an employee and no lulling an employee into a false sense of security. Rather, an employee is given one last chance to find an acceptable solution to work attendance.

Given the lack of an effective warning, the arbitrator reinstated the employee and ordered that she be compensated for any loss of pay, benefits and seniority.

5. A termination for lateness was upheld pursuant to a consent award that provided for termination in the event of any proven employment offence. 

In Cariboo Pulp and Paper Company, 2016 CanLII 61447 (BC LA) (Young), the employee was terminated after he was two hours late for work. At that time, he was working under a consent award that provided he would be terminated for any proven employment offence occurring during a specified two year period. This incident happened less than one month after he began working under the consent award.

The union’s defence was that lateness was not a disciplinary offence, and accordingly, the “last chance” agreement could not be invoked.

The arbitrator commented that “there is no question that lateness is, in the normal course, an employment offence.” He noted that “arbitrators have held that sleeping through an alarm, even when there is evidence of a power outage does not provide a valid excuse for lateness.” He concluded that the employee had no valid reason for being late.

The arbitrator characterized the issue as being whether lateness was a disciplinary offence at that employer, for no employee had ever been disciplined for lateness. The arbitrator commented that for the union’s argument to succeed, the union would have to establish not only that management was aware that other employees were late but that the employer had considered the infraction and expressly or by implication decided discipline would not be imposed for what would otherwise be an employment offence. That it was unable to do. The arbitrator also commented that there was no suggestion here that the employee had been lulled into assuming that he would not be disciplined for lateness. Moreover, even if there had been a general practice that employees would not be disciplined for lateness, such practice would have been brought to an end with the publication and dissemination of the Attendance Management Guideline.

The termination was upheld.

6. The limitations that arbitrators have imposed on an employer seeking medical information have been found to be applicable to disability insurance forms developed through collaboration between the insurance industry and various medical associations.   

In Moose Jaw Refinery Partnership, 2016 CanLII 81972 (SK LA) (Hood), the union grieved the scope of medical information sought by the employer and its insurer (Sun Life) when processing applications for short term illness/disability benefits. The arbitrator framed the issues as follows:

1. Is there a reasonable basis to request medical information?
2. Is the scope of the medical information requested reasonably necessary?
3. Is the employee required to provide the authorization to release medical information in the form requested?

The union challenged the reasonableness of the insurer’s grounds to request medical information along with the reasonable necessity of the medical information requested. The arbitrator stated that the medical information sought in the insurer’s forms went beyond what was reasonably necessary and beyond what the insurer needed to know from this initial request for medical information

In my view, Sun life is putting the cart before the horse. It asks for a “wide swath” of medical information upon an employee’s request for short-term disability benefits before Sun Life knows anything about the employee’s circumstances and what information is actually required for Sun Life to adjudicate the claim.

The information sought by Sun Life is not limited to least intrusive measures. It asks what the medical condition is and, further, it asks for medical information not directly related to the current condition. The forms require details about diagnosis, treatment, surgery, history, symptoms, anticipated complications, prognosis, test results, investigations, and all other consultations. While one can understand why the employee’s physician may ask for and discuss this information with his or her patient, this information is not reasonably necessary for Sun Life to initially determine if the short term sick leave is supported.

Although the Sun Life forms had evolved from collaboration between [the insurance industry and medical associations], that factor was of no consequence:

The fact that the Sun Life forms are a result of a CLHA collaboration with the Medical Associations does not mean the medical information sought in the forms is information that is reasonably necessary to support the employee’s STD claim. The union and the employees affected were not involved in the approval of the information requested in the forms … The patient’s interest has not been considered or satisfied. The interests of the CLHA and the Medical Associations cannot defeat the individual’s right to privacy of medical information when the individual’s rights have not been represented in the collaboration process.

The Sun Life medical consent was considered to be an unwarranted intrusion into the employee’s privacy, for it enabled Sun Life to communicate directly with the employee’s doctor. It also authorized Sun Life to disclose the employee’s medical information to agents or service providers of Sun Life. The arbitrator commented that “the employee’s authorization to release medical information need not be in the Sun Life form. It is sufficient if this authorization is provided directly by the employee to the doctor consenting to the release of such information to Sun Life.”

Arbitrator Hood further stated:

…It is inappropriate, generally speaking, to require the employee to provide an authorization that permits the employer or its agent to contact the doctor directly and obtain any or further medical information about the employee.

In commenting on the authorization on another of the Sun Life forms (the “Plan Members Statement”), the arbitrator stated that the authorization on this form

… is a blanket authorization. It is not limited to accessing information from the employee’s doctor. It extends and covers the release of information related to the employee’s absence from work from virtually anyone … the authorization completely disregards the employee’s right to privacy. The employee would not even know what medical information had been disclosed, let alone what use was made of it or why it was collected in the first place. The employee would also not know who was asking and who was disclosing. The authorization allows for a virtual free flow of medical information between the employer, Sun Life and their medical consultants.

The arbitrator concluded his analysis of these provisions by stating that “an informed employee can voluntarily agree to provide the authorization, but should not be compelled to do so.”

The union’s claim for damages was denied.  A declaration was granted that the Attending Physician’s Statement  and the Plan Members Statements were inappropriate in this case, in that “the completion of the Sun Life forms should not be universally required of all employees who access short-term disability benefits due to illness/sickness.”