Canadian HR Reporter

6 EMPLOYMENT LAW January 27, 2014 CANADIAN HR REPORTER Employer didn't investigate duty to accommodate ABSENTEEISM < pg. 5 would help the employee apply for LTD benefits. The employee continued to provide assurances that 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 for excessive absenteeism on Jan. 14, 2011. Shortly thereafter, the union filed a grievance requesting reinstatement. reiterated that she could handle it. The employee missed a total of 41 days of work in 2008 and a total of 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 vacation 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. By comparison, the average sick time taken by Cape Breton employees was six days per year. Depression 'serious and significant': Arbitrator The arbitrator found the employee's depression was "of a serious and significant nature" and that was a main contributor to her inability to come to work on time many mornings. This depression qualified as a disability that required employer accommodation to the point of undue hardship, said the arbitrator, Peter MacKeigan. 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, said the arbitrator. However, the employee's failure to improve and continued excessive absenteeism "had a sig- HR, employee meet to discuss problems In March 2010, the director of HR and the employee met to discuss her absenteeism. It was made clear to the employee 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 nificant and serious effect on the workplace and other employees," said MacKeigan. 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 information on the employee's 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. — 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 — that came out after the dismissal isn't relevant to the determination of cause. Dismissal not the answer However, while the municipality wasn't aware of the extent of the employee's health issues and Though the municipality wasn't aware of the extent of the employee's health issues and was unable to fully accommodate her, dismissal wasn't the right course of action. As such, the municipality understood the employee's absenteeism was related to her medical problems and considered it "blameless," but it considered the excessive absenteeism a pattern that was unlikely to improve in the future. Therefore, the Nova Scotia 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 therefore was unable to fully accommodate her, dismissal wasn't the right course of action, found MacKeigan. "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 in his decision. "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 employee's disability and its effect on her absenteeism wasn't accommodated by the employer, said MacKeigan, but the municipality also 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.). Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information. Refresh Your Employee Recognition Program in 2014 With our FULL CIRCLE solutions, we can help you get rolling. Request a Demo www.terryberry.com/2014ideas National Thank You Month National Wellness Month National Mentoring Month National Nurse Anesthetists Week (Jan. 19-25) National Medical Group Practice Week Jan. 27-31) 35 Recognition Holidays 35 Employee Recognition IdeasEmployee Recognition Ideas 2014 SUNDAY MONDAY J A N U A R Y TUESDAY 30 WEDNESDAY THURSDAY FORMAL Recognition FRIDAY SATURDAY Defined structured recognition. Significant awards for significant achievements. Great ideas for employee recognition, collected from HR professionalsGreat ideas leaders like you! & business for employee recognition, collected from HR professionals & business leaders like you! 31 1 2 3 4 26. "President's Circle" Induct employees who surpass a goal-post objective into an exclusive President's Circle with honors. Download the free iRecognize app and give recognition anytime! www.terryberry.com/tools 29 Terryberry can help turn your recognition ideas into reality. 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