Canadian Employment Law Today

October 24, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Should the worker have been accommodated? OR Did the worker's absenteeism frustrate her employment? IF YOU SAID the worker should have been accommodated, you're right. e arbitrator noted that in most cases, innocent absentee- ism linked to a medical condition that quali- fi es as a disability gives rise to a duty to ac- commodate. If accommodation is required, the absenteeism should be treated diff erent- ly than in an ASP. e health authority's ASP even stated that if absences may be related to a condition requiring accommodation, those absences shouldn't count towards the seven per cent threshold. e arbitrator accepted that the worker was warned that if her attendance didn't improve, her job would be in jeopardy, and agreed that there was "no positive prognosis for regular future attendance for the (work- er) to carry out regularly assigned shifts" that could lead to frustration of employ- ment. However, the key issue was the duty to accommodate, as the health authority was aware the worker had a chronic mental health condition. ough the FAFs didn't indicate any physical restrictions, they did note the worker had a psychological condi- tion that aff ected her ability to deal with the work environment and required occasional absences. However, the health author- ity didn't use this information to change the worker's track in the ASP, said the arbitrator. e arbitrator found that the health au- thority demonstrated that the worker's at- tendance was excessive and the worker had been warned about the consequences of fail- ing to improve, but it failed to fully discharge its obligation to accommodate the worker to the point of undue hardship. e health au- thority was ordered to reinstate the worker and work with her on possible accommoda- tion solutions. For more information see: • Sun Country Regional Health Authority and CUPE, Local 5999, Re, 2017 Carswell- Sask 670 (Sask. Arb.). Attendance headaches from mental health issues THIS INSTALMENT of You Make the Call features an employer who had enough with a worker's absenteeism stemming from the worker's psychological issues. e worker was hired in 2002 by Sun Country Regional Health Authority in Sas- katchewan, later becoming a continuing care aide at the Weyburn Special Care Home in Weyburn, Sask. In 2011, the care home began having prob- lems with the worker's attendance. As her absences became more frequent, the health authority put her on its attendance support program (ASP). e ASP was implemented when an em- ployee's absences fell within the top seven per cent of employees. If absences remained in the top seven per cent, the employee would progress through four stages, with the fi nal stage leading to consideration of termi- nation of employment. In March 2015, the worker was informed she had exceeded the absence threshold and the health authority had a doctor's note say- ing she had "a chronic medical condition that impacts your attendance at work." e disability management co-ordinator provid- ed the worker with a functional abilities form (FAF) for her doctor to complete. e workers' doctor indicated on the FAF that the worker was physically capable of return- ing to work on full duties, but didn't provide any information on psychological conditions. As a result, no accommodations were implemented. From March to May 2015, the worker missed 31.6 per cent of her scheduled hours, so she entered stage 1 of the ASP. e health authority agreed to assign the worker eight- hour shifts instead of 12-hour shifts and the worker agreed to contact the manager di- rectly rather than leave a message when she was going to be absent. Over the next three months, the worker missed almost 30 per cent of her scheduled hours, triggering stage 2 of the ASP. An ac- tion plan was developed that indicated the worker had a chronic mental health condi- tion and information for a counselling and support groups would be provided. Another FAF indicated the worker "will require occa- sional periods off of work, due to inability to cope with workplace environment." A psychologist recommended a modifi ca- tion of work hours in fall 2015, so accommo- dation was implemented with the eight-hour shifts, but the worker remained in the ASP. e worker's attendance improved in the fi rst quarter of 2016, but it was still in the top seven per cent so she entered the third stage of the ASP. She was told if she made it to stage 4, her employment could be terminated. e worker's attendance improved but was still in the top seven per cent, putting her into stage 4 of the ASP. Management noted the worker had mental health issues and de- veloped an action plan that included "main- taining a healthy mindset, access classes on depression, keep open lines with manage- ment..." but the worker was warned that if her sick leave remained in the top seven per cent, frustration of employment could occur. e worker's attendance showed im- provement initially, but fell off sharply in October and she failed to follow the proce- dure to call in sick. On Nov. 18, the worker's employment was terminated for frustration of employment for innocent absenteeism, with the health authority indicating "no ex- tenuating circumstances including disability or family situation that required accommo- dation has been confi rmed."

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