Canadian HR Reporter

January 27, 2014

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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January 27, 2014 EMPLOYMENT LAW CANADIAN HR REPORTER 5 Municipal worker in Cape Breton terminated for excessive absenteeism But arbitrator orders reinstatement after extent of employee's depression came to light A Nova Scotia employer failed to properly investigate accommodation options before it terminated an employee due to excessive but innocent absenteeism, an arbitrator has ruled. The employee worked for the Cape Breton Regional Municipality in Nova Scotia, doing payroll, accounts payable and rentals at an ice rink. For the first few years of employment at the municipality, she had no attendance issues at work. Her hours were somewhat flexible in that if she missed time, she could make it up by working weekends or overtime. However, in 2004, the employee was diagnosed with cancer, which made it necessary for her to take time off work. The illness required extensive treatment that took more than one year to complete. There were extreme side-effects that made the employee sick, and the drugs caused her to suffer symptoms of depression. The employee received longterm disability (LTD) benefits for nearly two years while she was treated for the illness. When the employee returned to work, she discovered her department had moved to a differ- — who was responsible for determining the fitness of employees to return to work — noted that the employee was depressed, had decreased energy, a lack of concentration and decreased interest as a result of her medication and treatment. Jeffrey Smith Legal View ent arena with a different workplace regime that didn't have the flexibility of her previous workplace. Since the employee hadn't fully recovered from her medical ordeal, she was frequently exhausted and felt stressed in the new workplace. After several months back on the job, she began to suffer from depression. Medication, side-effects from illness caused depression In 2006, the employee suffered from another serious illness that required surgery. After the surgery, her depression worsened. In September 2006, a physician in the municipality's occupational health services division the employee's ability to perform in the workplace. There were no further instructions regarding limitations or the need for accommodation. The employee resumed fulltime duties in June 2007. Over the next four years, the The employer was unaware of the nature of the employee's depression and followed the medical directions that related only to her ability to perform in the workplace. He recognized that she had a "major depressive disorder" and said she should continue taking medication while seeing a psychologist, with the aim of returning her to work. In March 2007, the municipality's physician and the psychologist felt it was in the employee's best interest to return to work on March 19, but in an "ease back" situation where she would start with part-time duties and gradually work her way back to full-time. The municipality was unaware of the nature of the employee's depression and followed the medical directions that related only to employee continued to work full-time but often arrived late. In many cases, she called in to notify the municipality she would be late for various reasons — such as a flat tire or a toothache. The manager of the rink kept a record of the absences and in none of them did the worker indicate the absence was due to fatigue or depression. Management at the municipality was aware the employee was dealing with serious health issues. It accommodated these absences based on medical information it received pertaining to the employee's needs, without discussing the specific nature of THE END JUSTIFIES THE MEANS! Want to attract and retain top talent? More than just a software solution, Employer D Select equips managers by giving them access to critical, essential data that is linked to human resource management and strategic company planning. Employer D, scalable solutions from Desjardins for payroll, human resources as well as occupational health and safety management. It's all of Desjardins supporting your business the employee's illness. Concerns about absenteeism The manager spoke with the employee on several occasions about her absenteeism and stressed to her that it made things difficult when she wasn't at work on time. Whenever it happened, other payroll staff had to fill in and cover her duties, which caused "considerable hardship" in the workplace. Because the absences were sporadic and came with little advance notice, the municipality couldn't simply replace the employee as it would if she were off for some time. As a result, work would often pile up and not get taken care of in a timely manner, and other workers became frustrated. Both the manager and union vice-president told the employee she needed to be punctual to avoid difficulties in the workplace. The employee replied that she thought she could handle things and she wouldn't miss time in the future. The employee did mention her issues with depression but EMPLOYER > pg. 6

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