llness and Absenteeism.com - Summer 2019 Newsletter

In this edition you will find:

A. Featured Case: The termination of an injured employee for having failed to use “fall arrest” equipment was found to be a pretext for the employer to avoid its obligation to accommodate the injured employee. The employee’s need for accommodation was apparent. The employer was found to be under an obligation to accommodate the employee even though no request had been made.

This decision sets forth the two criterion to be considered in arriving at the quantum of damages to be awarded in such cases.   [Click here]  

B. Recent Decisions of General Interest

1. An employer was found to have improperly denied a one year leave of absence for an employee who was seeking such leave to enable her to accept a term position with the RCMP. The arbitrator granted a declaration that the employer could not properly deny a leave of absence simply because the employee would be working for another employer for the period of the leave.      [Click here]          

2.A last chance clause that provided for termination in the event of further misconduct was held to prevail over a lesser penalty set forth in a safety policy that the employee had subsequently violated.    [Click here]  

3. Where a party seeks pre-hearing disclosure of a massive number of documents, the adjudicator will need to give consideration to the principle of proportionality in determining whether to grant such disclosures.    [Click here]  

4. A claims assessor or an employer who is assessing an employee’s disability claim cannot simply ignore the medical information that has been submitted. Where such information is considered questionable or unclear, the assessor should follow the matter up with the employee’s doctor or other qualified medical personnel. The fact that workplace issues caused or contributed to the employee’s condition does not mean that the illness and its symptoms are not bona fide or incapacitating.    [Click here]      

 


 A. Featured Case: The termination of an injured employee for having failed to use “fall arrest” equipment was found to be a pretext for the employer to avoid its obligation to accommodate the injured employee. The employee’s need for accommodation was apparent. The employer was found to be under an obligation to accommodate the employee even though no request had been made.

In O.I.International Inc., 2018 HRTO 77 (CanLII) (Janczur), the employee had been injured in a workplace accident. He was terminated several weeks later (and while still bedridden); purportedly because he had failed to use fall arrest equipment. It was the employer’s position that it had a “zero tolerance” policy for breach of safety rules. 

The adjudicator concluded that the assertion of cause was a pretext for the employer to avoid its obligation to accommodate the employee for the remainder of his term of employment.

The adjudicator stated that he considered the decision of the Supreme Court of Canada in Elk Valley Coal Corp., 2017 SCC 30 (CanLII) . In that case, the employer had a policy that required employees to disclose any dependence or addiction issue before a drug-related issue occurred. If they did, they would be offered treatment. The employee failed to disclose his addiction in accordance with the policy and was terminated as a result.

In Elk Valley, the Alberta Human Rights Tribunal had dismissed the employee’s claim that his termination was attributable to his disability. It held that the employee “was terminated for violating the policy, a workplace rule, not because of his addiction.” In upholding that decision, the Supreme Court agreed that the employee “had a choice to disclose and his employment was terminated when he failed to make that choice. His disability was not a factor and did not compromise his ability to make that choice.”

In this case, the employee did not have a choice. He was directed by the employer to work on a platform without safety tie offs. Consequently, the employer could not rely on the workplace rule to support its claim of termination for cause.

The employee’s need for accommodation was apparent. The employer was under an obligation to consider accommodation even though no request for accommodation had been made:

In the case at hand, although the [employee] had only eight weeks left in his term of employment, the [employer] was still under a duty to consider whether his disability could be accommodated.

Discharging the procedural component of the duty to accommodate would have involved requesting and obtaining medical information about his prognosis and the ability to return to work. If the [employee] had been cleared to return to work at some point during the remainder of his term, or if specific restrictions had been identified, the [employer] would have had to determine if he could have been assigned to modified duties [on the project or on an alternate project with another client].

The adjudicator stated it was “speculative as to whether a suitable accommodation could have been found because the [employer] did not undertake the kind of inquiry required by the procedural component of the duty to accommodate.” The adjudicator noted that the Tribunal had previously found an infringement of the Code where it found that only the procedural component of the duty to accommodate was not discharged by [an employer]. See Kawartha Pine Ridge District School Board, 2014 HRTO 1212 (CanLII).

The employer was a labour placement agency. It had no other construction industry clients. While the employee may not have been able to return to construction work, “the duty to accommodate requires that an employer consider all accommodation measures throughout all of its operations that would not cause undue hardship”. The employer had failed to even consider whether placement with a non-construction industry client might have been possible.

The adjudicator concluded that the employer’s “failure to obtain information about the [employee’s] disability, and to consider whether the [employee] would be able to return to work before the end of his contract and whether it could reasonably accommodate his disability was contrary to the provisions of the Code.”

The employee received Workers’ Compensation benefits for the remainder of the period for which he had been employed. He was also awarded the sum of $15,000 for injury to dignity, feelings and self-respect. Two management employees were ordered to take Human Rights 101 and to provide the employee with a certificate of completion within 30 days of the award.

In assessing damages for injury to dignity, feelings and self-respect, the adjudicator stated:

The Tribunal’s jurisprudence primarily applies two criteria in evaluating the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. The first criterion recognizes that injury to dignity, feelings and self-respect is generally more serious depending, objectively, upon what occurred. The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will generally be at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. See Best Buy Canada, 2010 HRTO 1880 (CanLII).

On the first criterion, the employer’s conduct was considered to be very serious. The employer had adopted a very callous attitude. It blamed the employee; it conducted a telephone interview with him while he was bedridden, in great pain and under the influence of powerful medication; and it failed to express concern or make inquiries regarding his health and well-being.

On the second criterion, the employee’s girlfriend and another friend testified regarding the impact of the termination on him. Their testimony established that the employee was emotionally stable, positive and happy before the termination. He was a “go-getter” who could handle anything. After the termination, he had lost focus and was described as “moody and irritable” and often “stressed”. He experienced great financial instability since the termination; he was living with his step-father but was unable to pay rent consistently. The fact that he had been terminated compounded the difficulty that he had seeking other employment.

The adjudicator commented that in assessing injuries, a distinction should be drawn between the impact of the discrimination and the impact of the injuries that were sustained in the accident. He noted that while “the conduct of the [employer] was serious, many of the difficulties pertaining to the emotional and psychological effects the [employee was] experiencing [were] attributable to the injuries he suffered and not the [discriminatory] termination.”

An employee’s obligation to make a request for accommodation is considered in section 14:432 of the Illness and Absenteeism manual and its supplement, while section 14:602 considers the consequences of an employee’s failure to make such a request where the disability and the need for accommodation can be inferred from the circumstances of the case.


B.     Recent Decisions of General Interest

1. An employer was found to have improperly denied a one year leave of absence for an employee who was seeking such leave to enable her to accept a term position with the RCMP. The arbitrator granted a declaration that the employer could not properly deny a leave of absence simply because the employee would be working for another employer for the period of the leave.  

In Halifax Regional Municipality, 2017 CanLII 82065 (NS LA) (Raymond), the employee was denied a one year leave of absence to accept a clerical term position with the RCMP. She accepted the position and then grieved her employer’s denial.

The collective agreement provided:

An employee shall be entitled to an unpaid leave of absence where such leave is necessary to alleviate hardship to the employee or the employee’s family, such as serious family illness or relationship breakdown. In circumstances where an unpaid leave is requested by an employee for reasons other than to alleviate hardship to the employee or the employee’s family, the employer will balance the wishes of the employee with operational requirements and will not unreasonably deny a request for an unpaid leave. An employee will make a request for unpaid leave in writing.

The arbitrator stated that she was legally bound to apply the legal test set forth in the decision of the Court of Appeal in NSGEU [Nova Scotia Government Employee Union, 1993 Carswell NS 489].The arbitrator stated that the correct “legal test to be applied  is whether the employer’s decision to deny leave was “unreasonable” on the basis of the information available to it, one that a reasonable person possessing the facts and exercising common sense would not reach, as opposed to patently unreasonable or irrational.”

The union alleged that the employer had a policy to deny unpaid leaves of absence if the reason for the leave was to work for another employer. It contended that such a policy, if it existed, would be arbitrary, and that such a policy would cause the employer to fail to engage in a balancing exercise, with the result being that the Employer’s operational requirements would not be weighed against the employee’s wishes, as required by the collective agreement.

Despite the fact that neither party produced evidence of such a written policy as it applied to bargaining unit employees, the arbitrator found that such a written policy did exist. She did so on the basis that a witness for the employer testified that the decision to deny the request was based on a policy to deny a request for a leave of absence if the reason for the leave was because the employee wished to work for another organization while on such leave.

She then concluded:

In my view, denying a request for a leave of absence based on an unknown policy outside of the terms of the collective agreement, is an unreasonable decision.

As relief, the Union had sought, and was granted a declaration that the employer may “not have or apply a blanket policy to deny requested leaves of absence from employees in the bargaining unit on the basis that the employee will be working for another employer.” She also issued a declaration that the employer did not appropriately consider either its operational requirements or the employee’s wishes in denying her request for an unpaid leave of absence.

Issues regarding an employee’s entitlement to a leave of absence are addressed in Section C of Chapter 7 (Medical Certificates and Leaves of Absence) commencing at page 100 of the Summer 2019 version  of the Illness and Absenteeism manual and its supplement.


2. A last chance clause that provided for termination in the event of further misconduct was held to prevail over a lesser penalty set forth in a safety policy that the employee had subsequently violated.   

In J.D.Irving Ltd. 2017 CanLII 79244 (NB LA) (Couturier), the employee had been working pursuant to a last chance agreement that was set forth in his letter of discipline. It stated:

Please be advised that this is your last chance. Should you have another serious disciplinary issue on your file, your employment with the Company will be terminated with cause. Please sign and date this letter where indicated below and return the original to my attention.

The letter was countersigned by the employee and the Union president.

The discipline had arisen from the employee’s breach of the company’s “lock out” policy. The employer’s Safety Disciplinary Policy provided for “zero tolerance” for major breaches. The policy provided that the first breach would result in a two week suspension. It was the Union’s position that the penalty set forth in the Policy should apply.

The arbitrator stated that the Safety Disciplinary Policy appeared to be pitted against the last chance agreement. However, in dismissing the Union’s contention that the penalty provision in the Safety Disciplinary Policy should prevail, the arbitrator commented that such policy was one of general application that applied to all employees, while the last chance provision applied solely to this employee. His bargain with his employer was one in which the employer had foregone discharge. In this case, the Policy was subordinate to the last chance agreement in relevance and should not apply.

The arbitrator stated that the last chance clause did not contain “the commonly utilized provision against its arbitral review” and consequently, he was free to determine if “another serious disciplinary issue” had arisen. Given that those words had not been defined, the arbitrator approached that assessment by comparing “the seriousness [of the latest incident]” with previously sanctioned incidents that had been deemed to be serious. He concluded that the latest incident matched or exceeded the others in gravity.

The employee had also challenged the last chance provision on the basis that he had “signed off” reluctantly, for if he had not signed off, he would not have been allowed to return to work. The arbitrator concluded that the employee was likely correct in that assertion. He was unemployed and he had a family to support. Those factors were not however sufficient to negate the conditions of the last chance provisions and the actions which triggered the employee’s dismissal. The grievance was dismissed.

Issues regarding last chance agreements are considered in Chapter 16 of the Illness and Absenteeism manual and its supplement.


 3. Where a party seeks pre-hearing disclosure of a massive number of documents, the adjudicator will need to give consideration to the principle of proportionality in determining whether to grant such disclosures.  

In Ontario Provincial Police, 2018 HRTO 101 (Gottheil), the applicants were a group of women who had alleged gender based, systemic discrimination in relation to their employment. This application dealt with production requests that had been filed on their behalf.

The adjudicator stated that where an adjudicator is called upon to make a determination on a pre-hearing disclosure application, where the data requested is “massive”, consideration may need to be given to the principles of both proportionality and fairness in balancing the interests of the parties. He stated:

… in assessing whether to order pre-hearing disclosure, an adjudicator should assess whether the materials are arguably relevant, based on the claims and allegations set out in the application. Where a request is for a large number of documents, or records that go back many years, the adjudicator will need to have regard to the principle of proportionality in determining whether to grant disclosure. This will require, among other things, the monetary value of the application, the interests involved, the novelty of the legal issues and the nature of the case (for example whether the case is a type where the documentary information is primarily in the possession of the other party). The balancing will also have regard to the capacity of the party from whom the production is sought to search, review and produce the requested materials.

In considering those principles, the adjudicator stated:

… The issue is one of significant importance, involves over 80 employees who allege wage and other workplace discrimination on the grounds of gender, and is against a government institution which has the capacity to produce the materials, where they are arguably relevant.

Extensive disclosure was ordered.

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


 4. A claims assessor or an employer who is assessing an employee’s disability claim cannot simply ignore the medical information that has been submitted. Where such information is considered questionable or unclear, the assessor should follow the matter up with the employee’s doctor or other qualified medical personnel. The fact that workplace issues caused or contributed to the employee’s condition does not mean that the illness and its symptoms are not bona fide or incapacitating.   

The issue in Grand Lake Timber Ltd., 2018 CanLII 50206 (NB LA) (Doucet) centred on whether the employee was disabled and entitled to benefits pursuant to the provisions of the weekly indemnity disability benefit that was set forth in the collective agreement.

The employee was suffering from stress and anxiety. His doctor initially “put him off work” for two weeks. He prescribed medication for the employee’s anxiety and stress. The initial denial of benefits was subsequently reversed, with the employee being granted three weeks of wage replacement benefits.

Despite there being medical evidence of the employee’s disability, a disability claims specialist with the insurer made the decision to discontinue the benefits. She did so following a telephone conversation with the employee, in which he advised that he was improving, and that if his shift was changed so that he did not have to have contact with the employee that was the cause of his stress, he should be able to return to work.

In the letter terminating the employee’s benefits, the claims specialist stated that such information “does not support a severity of symptoms causing you to have restrictions and limitations that would preclude you from performing the duties of your occupation or an accommodation.” She later testified that she believed that the employee’s problems were not medical but more of a workplace issue and that they did not prevent him from performing the duties of his occupation. Although the employee “might have been ill, his illness did not amount to a disability.”

The arbitrator first considered whether the employee’s grievance was arbitrable. He concluded that it was. The insurance provision did not stipulate that the benefits were to be provided by a third party insurer. In essence, the employer assumed liability for the payment of claims that satisfied the stipulated qualifying criteria.

At the time that the claims specialist made her decision to limit the employee’s benefit claim, she had before her the assessment of the employee’s family doctor (who had certified that the employee was unfit for work) and the report of the insurer’s medical consultant (who had concurred with the assessment of the employee’s family doctor and had opined, that with treatment, the employee could likely have returned to work within six to eight weeks.)

The claims specialist acknowledged that she was not qualified to provide a medical opinion. The arbitrator stated that she could not ignore the information that had been placed before her:

… If she had concerns with the medical information that had been provided or if she felt that the report of the medical consultant was not sufficiently clear, she should have followed it up with either the [employee’s] doctor or with the consultant. If she had doubts about what the [employee] had told her [in their telephone conversation], compared to what the doctors were saying about his medical situation, it was incumbent on her to probe the matter further and to ask questions as to whether what the [employee] had told her was compatible with the conclusion of at … least the medical consultant. Instead, in disregard of the medical information before her, [the claims specialist] decided to give preference to what the [employee] had told her during their phone conversation …

In considering the evidence, the arbitrator commented that he too was not a qualified medical practitioner and accordingly, in order to decide whether the employee’s continuing absence from work was medically required, he “must give the greatest deference possible to the assessment made by the family doctor and by the medical consultant” and must also take into consideration the information that the employee had provided to his employer.”

The arbitrator further stated:

One of the strongest arguments put forward by the Employer is that the [employee] should have been fit to return to work once the conflict with a co-worker was resolved. There is no doubt in my mind that the [employee’s] workplace situation (conflict with a co-worker, stress in operating a piece of machinery) is part of the reason he was absent from work and that it did constitute barriers to his return to work. However, that fact alone is not sufficient to detract from the medical evidence that was submitted. In many cases, an injury or illness may be caused by external events. In this case, it might be the relationship between the [employee] and a co-worker contributed in a large measure to his condition. It might also be that the [employee] is functioning better at home. However, that in itself is not an appropriate basis for denying his claim. I agree with the following statement of the arbitrator in Ontario Power Generation Inc., at paragraph 81:

The fact that workplace issues … caused or contributed to the depressed mood, stress and anxiety does not mean that the illness and the symptoms are not bona fide or incapacitating.

The arbitrator concluded that the medical evidence supported the conclusion that the employee had been diagnosed with anxiety and stress and that he was unable at the relevant time to perform the duties of his occupation because of his medical condition. He was found to have been entitled to short term disability benefits during a period after such benefits had been discontinued.

Issues regarding an employer’s obligation to seek further medical information are explored in section 7:701 of the Illness and Absenteeism manual and its supplement.