Canadian Employment Law Today

8 | November 23, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends e worker also was a single mother with an elderly mother who lived with her and her two teenage sons. Her mother required fre- quent special care — such as assistance go- ing up and down stairs and in and out of the bathtub — for which she relied on the work- er. ere were no other family members in Canada who could assist with her mother's care, so attending to her mother's needs of- ten required her to be absent from work. In October 2013, Winners implement- ed an attendance management program (AMP). e program started with three in- formal stages, and if this didn't improve an employee's attendance, the employee would be put into a formal attendance process, also with three stages. In October 2014, the worker's mother de- veloped a kidney problem that required the worker to stay home with her and the worker paid for her sister to come from Guyana to help out. At this point, she had racked up 114 absences in 2014, which by then had placed her in the third stage of the informal part of the AMP process. ese absences included a period from September 2013 to March 2014 when she was essentially absent from work the entire time. On Oct. 22, Winners sent a letter to the worker outlining the fact she had 171 days of unscheduled absences since Sept. 23, 2013, for which the company had not received medical documentation to support them — the collective agreement stipulated that the employer could demand reasonable proof of illness for absences of three consecutive days or more. At the time, she had not been at work since Sept. 7. e company requested documentation by Nov. 5 so it could assess if it needed to accommodate her. Failure to provide the documentation would result in the worker's termination. Six days later, the company held a third-stage informal atten- dance meeting with the worker. Winners also provided a letter for the worker's physician that asked for informa- tion on the nature of the worker's condition, any restrictions she had, her prognosis, and any treatment. Attendance improved but no medical information After the attendance meeting, the worker's attendance improved dramatically. Over the next month, she was only absent for two hours and she also worked voluntary over- time on occasion. She later testified this was because her physician had given her corti- sone shots and exercises to perform that lessened the pain in her back and shoulder, and her sister was around to help with her mother. However, the worker failed to provide documents to support her previous absenc- es, though she was given three extensions until Nov. 21. She had previously provided some medical certificates referencing back and shoulder pain, as well as "taking care of her mother," for some absences — and some with no reason given at all — but she explained she couldn't afford to pay the $200 fee her physician required to complete the information form. However, Winner's ter- minated her employment on Nov. 26. In the termination letter, Winner's ex- plained it wasn't required to accommodate her personal choice of caring for her mother on her own rather than hiring someone to help, and the fact she had been at work every day for the past month showed her injuries had not been affecting her to the point where she needed to be absent as much as she had been before the warning. On Dec. 22, the union provided the com- pleted letter from the worker's physician in- dicating the worker suffered from low back pain but had no specific restrictions. e physician indicated the worker could return to work immediately and her prognosis was "unchanged and uncertain." Winner's agreed to reinstate the worker with a last chance agreement requiring her to maintain an absence rate at or below "the facility two-month average" over four re- porting periods. By Aug. 1, 2015, the worker took three sick days, while the facility aver- age was just over one-and-one-half days. Winner's terminated the worker's employ- ment a second time for breaching her last chance agreement. e arbitrator found that, given the amount of absences on the worker's re- cord and the collective agreement, Win- ner's request for medical information was reasonable. ough it didn't need to know the details, the company was entitled to in- formation on the worker's current state of health — both for supporting the worker's ongoing absences and determining if ac- commodation was necessary. While the worker did provide medical certificates for some of her absences, the reasons given on them were "either non-existent or skeletal at best." And despite Winner's granting three extensions, the worker couldn't provide fur- ther information in a timely manner, which also amounted to insubordination, the arbi- trator said. e arbitrator didn't buy the worker's ex- cuse that she couldn't afford the $200 to pay her physician to complete the questionnaire. e evidence showed the worker earned more than $5,000 in November 2015 and paid for her sister to visit from Guyana. In addition, the worker didn't apply for short- term disability benefits or employment in- surance sickness benefits. It was likely the worker suffered from le- gitimate medical issues such as back and shoulder pain, which may have caused dif- ficulties in performing her job duties, but the medical evidence she provided was "pa- per thin" and she suddenly was able to work every day without any problems after her she was warned her job may be jeopardy, said the arbitrator. In addition, when the worker's physician eventually completed the questionnaire a month after the dismissal, he indicated her prognosis was "unchanged and uncertain" — hardly consistent with the worker's sudden recovery, which she attrib- uted to cortisone treatment and exercise, the arbitrator found. e arbitrator also found it was incum- bent upon the worker to attempt to arrange alternate care arrangements for her mother, so she could fulfill her obligation to work as scheduled. She failed to do so and was incon- sistent in providing information to Winners about her absences related to this. However, the arbitrator noted that Win- ners didn't take action on the worker's ab- sences until the October 2014 letter, ac- cepting the previous medical notes without question and not challenging directly the absences in the years before then. In addi- tion, the letter to the physician didn't ask questions related to past absences, only the worker's current state of health. Also in the worker's favour was the fact that she started attending work consistently after the letter and hardly missed any time in the month before her dismissal. is dem- onstrated a likelihood her attendance would continue to improve going forward, said the arbitrator. Winners was ordered to reinstate the worker with a one-month suspension re- placing her termination on her record — but no compensation for lost wages and ben- efits, in order to send the message that the worker must attend work as scheduled and because she continued to insist that the $200 cost kept her from providing medical infor- mation in a timely manner. For more information see: •Winners Merchants Intl. LP and Work- ers United Canada Council (Ali), Re, 2016 CarswellOnt 16376 (Ont. Arb.). Worker's attendance improved significantly after meeting « from WINNERS on page 1 The worker's physician indicated the worker had no specific restrictions but her prognosis was 'unchanged and uncertain.'

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