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6 | May 1, 2019 Cases and Trends Canadian HR Reporter, 2019 short-term disability (STD) benefits and, in September, went on long-term disability (LTD) benefits. While Reed was off work, the benefit plan administrator, Sun Life, supplied updates to Peel's disability management specialist (DMS) regarding Reed's claim, prognosis, and projected return-to-work date, as was established practice. e DMS then kept Peel's human resources depart- ment up to date on Reed's status with an aim to accommodating his restrictions and any necessary job modifications when he returned. e collective agreement between Peel and its union allowed the municipality to terminate an employee who was absent from work by reason of illness or accident for more than 24 months, though it some- times considered other options such as additional accommodation before doing so. In addition, after 24 months Sun Life could decide to discontinue LTD benefits if an employee was totally disabled. On Dec. 17, 2015, Sun Life informed Peel's DMS that there was "no return to work planning at this time" for Reed. A few months later, in April 2016, Sun Life advised that Reed's doctors had provided information that was insufficient to de- termine if he was entitled to LTD benefits beyond 24 months. Reed's LTD benefits elapsed on July 30, 2016, and Sun Life was still waiting for clarification of Reed's con- dition and restrictions. Peel contacted Reed to ask him about his fitness to return to work but Reed was unable to provide any update to his prognosis. In June 2016 Reed wrote to Peel seek- ing clarification of his entitlement to LTD benefits beyond the 24-month period in the collective agreement, and the munici- pality advised that he needed to be totally disabled from performing any occupations in order to qualify. LTD benefits stopped after 2 years By July, Sun Life hadn't received the ad- ditional information it needed to extend Reed's LTD benefits. As Peel had informed Reed, his condition had to prevent him from performing the duties of any occupa- tion that he could do based on his educa- tion, training, and experience for the bene- fits to continue after July 30. After Sun Life contacted him, Reed's doctor provided additional medical information to support a claim of total disability, but Sun Life re- quested an Independent Medical Exami- nation (IME) due to "complexities of this claim." Sun Life told Reed that if he didn't attend the IME, it would close his claim. However, Reed didn't confirm receipt of this information and didn't attend the IME. As a result, Sun Life discontinued his LTD benefits and Reed filed a civil claim against the provider. When Peel Region was informed that Reed's LTD benefits had been discontin- ued, a management meeting was held to discuss options. ey determined there was no estimated return-to-work date — with no indication from Reed if he would be returning at some point and he had failed to attend the IME — and decided to ter- minate Reed's employment without cause in September 2016. e termination letter stated that the information it possessed in- dicated he was "not likely to return to work in the foreseeable future" and it needed "to carry on with our operations." e union grieved Reed's dismissal, ar- guing that it violated his rights under the Ontario Human Rights Code as well as the collective agreement's discrimination pro- vision and requirement for termination to only be for just cause. e arbitrator found that the collective agreement's provision allowing termina- tion of employment after 24 months' ab- sence due to injury or illness overruled or satisfied the just-cause termination pro- vision, so the termination would only be wrongful if it violated Reed's rights under the human rights code. Innocent absenteeism e arbitrator noted that a failure to regu- larly attend work due to reasons beyond an employee's control was considered in- nocent absenteeism and could be grounds for termination based on frustration of the employment contract. It had been es- tablished in employment law that frustra- tion of contract occurs when the employee can't fulfil her job duties and has no pros- pect of returning to work in the foresee- able future, said the arbitrator. In the context of the duty to accommo- date, attendance at work and performance of job duties could be considered bona fide occupational requirements. However, the employer's duty to accommodate was still in effect up to the point of undue hardship. e question was, did Reed's circumstanc- es constitute undue hardship, the arbitra- tor said. e arbitrator found that the 24-month period in the collective agreement protect- ed employees receiving LTD benefits from dismissal for that length of time — this was a "negotiated accommodation." Once Reed reached that period in April 2016, Peel con- tinued to keep him as an employee for an additional five months. It only terminated Reed's employment after Sun Life discon- tinued the LTD benefits and informed the municipality that there was no return-to- work date, not due to any evidence Peel had reached the point of undue hardship, said the arbitrator. e arbitrator noted that "the most sig- nificant shortcoming" in Peel's accom- modation efforts was the fact that it didn't directly contact Reed before deciding to terminate his employment. After inquir- ing about his prognosis in April 2016, the only communication with Reed was a brief answer to his inquiry about his eligibility for continued LTD benefits. At that time the municipality didn't ask about the pos- sibility of returning to work, nor at any time was Reed warned his job could be in jeopardy — Reed was told management just wanted "to get a sense if you were able to return to work." "In short, the region's efforts did not make it clear to (Reed) that they were seri- ous about determining whether or not he would be fit to return to work in the fore- seeable future," said the arbitrator. "It is not enough for an employer to rely upon its disability benefits provider to enquire about and assess an employee's fitness to return to work. In order to fulfill its duty to accommodate, the employer must make its own enquiry and determination." e arbitrator noted that Peel's organi- zational structure — including human re- sources, the DMS, and third-party insurer Sun Life — impacted its ability to commu- nicate directly with Reed about his return- to-work obligations and the collective agreement. Reed didn't seem to be aware he could be terminated after two years' ab- sence when he asked about a continuance of LTD benefits, and he was never told that Peel was considering that option. e arbitrator determined Peel failed to accommodate Reed to the point of undue hardship, violating his right to equal treat- ment under the Ontario Human Rights Code. Both parties agreed to submit evi- dence related to a remedy following the arbitrator's decision. For more information see: • Regional Municipality of Peel and OPSEU, Local 277 (Reed), Re, 2019 CarswellOnt 4115 (Ont. Arb.). « from INNOCENT on page 1 The municipality didn't directly contact the worker before deciding to terminate his employment. Provider didn't receive confirmation of total disability

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