Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: ACCOMMODATION Employee said she would be on time going forward Continued from page 4 ture. The employee mentioned her issues with depression but reiterated that she could handle it. The employee missed 41 days of work in 2008 and 29 the following year, along with four unpaid leave days and many vacation days taken in lieu of sick days. In 2010, she took 10 unpaid leave days and more than 20 vacations days taken in lieu of sick days. In addition, she missed more than three months with a workers' compensation claim from a work-related accident that required physiotherapy. The average sick time taken by Cape Breton employees was six days per year. In March 2010, the director of HR and the employee met to discuss her absenteeism. It was made clear to the employee that the municipality was aware she was dealing with a serious illness, but her "continued excessive absence" could lead to termination. The municipality also requested medical approval showing she was fit to work a regular work schedule. If not, and if her health problems were serious enough that she was unable to work regularly, then the municipality indicated it would help the employee apply for LTD benefits. The employee continued to provide assurances she would come to work on time, but she still regularly did not. The municipality finally decided the difficulties the absences were causing were too much and it could no longer accommodate the employee as a full-time worker. It terminated her employment on Jan. 14, 2011, for excessive absenteeism. Shortly thereafter, the union filed a grievance requesting reinstatement. The arbitrator found the employee's depression was "of a serious and significant nature" that was a main contributor to her inability to come to work on time many mornings. It qualified as a disability that required accommodation to the point of undue hardship, said the arbitrator. The arbitrator also found the employee's statements that she would be on time for work after being warned were understandable since she was worried about her job and intended to try harder to be on time. However, her failure to improve and continued excessive absenteeism "had a significant and serious effect on the workplace and other employees," said the arbitrator. Employer didn't know extent of health issues While its workplace and other workers were affected by the employee's absenteeism, the municipality had no specific medical information on her medical condition and the impact of her depression on her absenteeism, since it had only been given information relevant to her fitness to work — common practice in such circumstances. The employer didn't know the impact of her depression on her absenteeism. It had only been given information relevant to her fitness to work – a common practice. As such, the municipality understood the employee's absenteeism was related to her medical problems and considered it "blameless," but it felt the excessive absenteeism was a pattern thatwas unlikely to improve in the future. Therefore, the municipality felt it had reached the point of undue hardship and couldn't employ the employee as a full-time worker. The arbitrator noted a 1995 Supreme Court of Canada decision — Quebec Cartier — that stipulated a dismissal should be upheld when the employer has just cause based on the information it has at the time of dismissal. Subsequent information — such as the details of the employee's depression and its contribution to her absenteeism — which came out after the dismissal isn't relevant to the determination of cause. However, though the municipality wasn't aware of the extent of the employee's health issues and therefore was unable to fully accommodate her, the arbitrator found dismissal wasn't the right course of action. "I do not see in the (Nova Scotia human rights legislation) as intending to take away any rights which the (employee) may have with respect to an accommodation simply because that information, through no fault of the employer, the union, or the (employee), was not made known or available to the employer prior to termination," said the arbitrator. "Had this information been known to the employer at the time of termination, then there is no question the information as to the disability would have required to have been considered by the employer under the duty to accommodate." The arbitrator found the employee's disability and its effect on her absenteeism wasn't accommodated, but the municipality didn't have the opportunity to investigate its duty to accommodate since it didn't have all the medical information. The municipality was ordered to reinstate the employee, but only conditionally pending a review of its ability to accommodate her. FOR MORE INFORMATION SEE: • Cape Breton (Regional Municipality) and CUPE, Local 993 (B.(A.)), Re, 2013 CarswellNS 963 (N.S. Arb. Bd.). • M.U.A., local 6869 c. Cie minière Québec Cartier, 1995 CarswellQue 24 (S.C.C.). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as family status accommodation, young workers and the law, gender expression and identity in the workplace, best hiring practices, social media in the workplace, and accommodating people with disabilities. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Published by Canadian HR Reporter, a Thomson Reuters business 2014 5

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