Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends plaint of discrimination based on disability. MHPM filed an application to dismiss the complaint on the basis Mou did not have a disability and therefore it couldn't have played a role in her termination of employment. MHPM argued that for an injury or illness to qualify as a disability, there had to be an element of permanence and persistence to it. Mou's health issues were temporary and she fully recovered from them, so they didn't affect her participation in the workplace or society, said the company. In addition, there was no depression diagnosis until after Mou's termination, so that wasn't a factor in the dismissal, it said. e tribunal noted that the Ontario Hu- man Rights Code defined a physical dis- ability as "any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness." It was also important that the code referred to the right to equal treatment with- out discrimination "because a person has or has had a disability or is believed to have or to have had a disability." is statement showed the code contemplated that a disability didn't have to be permanent, said the tribunal. e tribunal agreed that certain individu- al temporary ailments, such as a cold or flu, wouldn't be seen as a disability as they don't hinder someone's "full participation in soci- ety." However, it found that Mou's injury and miscarriage were more than just that. e tribunal found that Mou's January 2013 injury required three weeks to heal and kept her from working, despite the fact she tried to return to work twice during that time. "An injury of this nature is not a common ailment, nor is it transitory. It is different from the flu and the common cold, which take a few days to get over and affect many people," said the tribunal. "e injuries ex- perienced by (Mou) impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time." e tribunal also found Mou's miscarriage wasn't a common or transitory ailment. Mou suffered "significant emotional distress" af- terwards, even after she recovered physi- cally. As a result, the miscarriage should be considered a disability that affected Mou's ability to work, said the tribunal. ough Mou had recovered from both her injuries by the time of her dismissal, the tribunal found the absences that played a role in her dismissal were disability-related. e tribunal found Mou established that she had a disability and dismissed MHPM's application to dismiss the complaint. See Mou v. MHPM Project Leaders, 2016 HRTO 327 (Ont. Human Rights Trib.). Miscarriage not a common or transitory ailment « from EMPLOYEE'S on page 1 Last-chance agreement's rule leaves little room for flexibility AN ONTARIO employee breached his last-chance agreement by refusing to take an alcohol test until he had a union repre- sentative present, an arbitrator has ruled. Scott Heath was an employee of the City of Cornwall, Ont., for 29 years. On Oct. 29, 2013, Heath's employment became contingent on a memorandum of agreement that was the re- sult of alcohol-related misconduct including being impaired at work and operating a vehi- cle while impaired. Under the memorandum of agreement, Heath was required to undergo random alcohol testing whenever requested by the city, for a period of 24 months. If such a test was ordered and Heath either failed or refused to take the test, the city would con- sider it a breach of the memorandum and ter- minate Heath's employment. On Aug. 25, 2014, another city employee contacted city management and suggested Heath may have been drinking while at a worksite. Heath's supervisor called him and asked him to come to his office. When Heath arrived at the supervisor's of- fice, the supervisor asked to smell his breath and he complied. e supervisor asked him to wait outside and called the city's human resources manager and the division man- ager. Heath was brought back in to join them and declined their offer of having a union representative present after he was told they were "just having a discussion." e HR manager advised Heath that an- other city employee had suggested he had been drinking, so the city was exercising its right under the memorandum of agreement to order an alcohol test. Heath consented and chose to go to the hospital rather than a police station, and the HR manager and his supervisor went with him. Heath registered at the hospital's emer- gency department and spoke privately with a nurse before the nurse told the HR manager and supervisor that they shouldn't have come there for that type of test as there were more appropriate places to do it. e nurse, think- ing Heath appeared stressed and unsure of his rights, said she would do the test if Heath consented but he shouldn't without a union representative. Heath indicated he didn't want to proceed without a union representa- tive there. He later testified that he put up his hands and said "is is more than a chat like I was told it was going to be; I'd like to speak to my union." However, he wasn't able to reach anyone and could only leave a message. It became apparent they weren't going to get the test done anytime soon, so the HR manager and supervisor decided to suspend Heath with pay pending an investigation — meaning when they could discuss it with the city's chief administrative officer. On Aug. 27, the HR manager called Heath into her office and informed him he was be- ing terminated for failing to undergo an al- cohol test as required under the memoran- dum of agreement. e union grieved the dismissal, arguing Heath never refused the test, he was just exercising his right to have union representation present. e arbitrator found that Heath signed the memorandum of agreement acknowl- edging past misconduct and accepting the terms. Health said he had only signed the agreement to avoid being fired, which the ar- bitrator found meant he either was guilty of the misconduct or had no problem making false statements to save his job. Either, way it didn't help his credibility, said the arbitrator. e arbitrator found that when Heath said he wanted to speak to his union, he was plac- ing a condition on his consent to take the test. Heath raised his hands in a gesture meaning "stop" and it was reasonable for the HR man- ager and supervisor to think he was refusing without union representation. Heath knew no-one was available and that refusing to take the test at that point would mean he wouldn't be able to take it within a reasonable amount of time, said the arbitrator. "e greater the amount of time between alcohol consumption and an alcohol test, the less likely there will be a positive result," said the arbitrator. "In other words, any delay in taking the test could only be to (Heath's) ad- vantage, which would be a reason for him to be less agreeable." e arbitrator found the terms of the mem- orandum of agreement obliged Heath to con- sent to testing whenever the city requested it. By placing a condition on his consent, Heath breached the agreement, the arbitrator ruled in upholding his dismissal. See Cornwall (City) and CUPE, Local 234, Re, 2016 Car- swellOnt 3341 (Ont. Arb.).

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