Canadian Employment Law Today

but was upset with the mention of her be- haviour to her doctor. After one week, she took sick leave again for another two weeks. She returned for three days and then went on vacation. By June, the worker had ex- hausted both sick leave and vacation leave, but she had only worked four days that month. e disability manager couldn't understand what was going on, since the medical reports indicated the worker could work regularly. By July 2013, the worker had already taken nine sick days and 22 SLUP days out of 68 working days in that fiscal year. She was ad- vised her attendance needed to improve and if a need for accommodation was identified, the department would work with her and the union. e department also said it required medical clearance for a return to work, since the worker was off work at the time. e worker mentioned she had been diag- nosed with depression, which was why she was missing work, but there was no medical evidence indicating she couldn't work. Over the next three months, the worker missed another 28 days with no medical documents supporting her absences. e manager of employee relations met with her twice to advise her that things needed to improve or her job would be in danger, since her absences were disruptive to the depart- ment and customer service suffered when it was short-staffed. e worker told the manager she had colitis and submitted a FARF from another doctor indicating she had colitis in addition to depression, though no functional limita- tions were identified and monitoring would continue. e worker showed an inability to work more than a few days or partial days before being absent over the next few months. Af- ter meeting with the disability manager, the worker continued to show up sporadically, only being present for roughly half of the working days from May to July. e worker's doctor responded to a query by saying there were days the worker could do cognitive abilities, which is when she went to work, and days she couldn't, which is when she stayed home. e doctor also said the work- er was engaged in a treatment plan but was not always able to do it. e department still didn't have any indi- cation of the worker's limitations or restric- tions and was at a loss. On Oct. 7, it placed the worker on "special unpaid medical leave" pending an independent medical examina- tion. is resulted in an assessment that the worker was fit to return to work immediately with no limitations. e department informed the worker in January 2015 that she had full clearance to return to work, her attendance and behav- iours in the workplace would be monitored and further attendance issues would subject her to discipline up to and including dis- missal. e worker's attendance remained at ac- ceptable levels for a few months, but by April and May she was absent 24 days over the two months. Another report from the worker's doctor in June indicated the main problem preventing her from working regularly was her depression, but they were adjusting her medication and "hopefully over time she will improve sufficiently to attend work more regularly." At this point, the department was considering termination. Worker dismissed after absence following 2 weeks of attendance ere continued to be gaps in the worker's attendance, with her missing seven-and- one-half days in July and four days in August with no medical explanation — the average for provincial government employees was one day a month. e worker was at work for two full weeks without an absence in the second half of August, but took a SLUP day on Aug. 31. e next day, the department dismissed the worker for innocent absen- teeism, with the termination letter stating: "Despite our efforts to work with you to improve your attendance, your level of ab- senteeism remains excessive and continues to negatively impact operations. Given your attendance history, we are left to conclude that we cannot expect a sustained improve- ment in your attendance in the future." e arbitrator found that the department used a reasonable standard — the one-day- per-month average level of absenteeism for provincial government employees — and, in comparison, the worker's leave was exces- sive. In addition, the unpredictable nature of the absences aggravated the problem, as did the lack of concrete information on whether things would improve. However, the arbitrator found that wasn't reasonable for the department to "continue on the path to termination" when there may have been indications things were im- proving. e worker attended work for two weeks without an absence and had four days total leave in August, but she was terminated her after being absent Aug. 31, as if the de- partment had been waiting for her next ab- sence. Since the last doctor's report in June indicated the worker's medication was be- ing changed, it would have been reasonable to see if there was a correlation between the improved attendance in August and the new medication regime. Without this informa- tion, the department didn't have a real prog- nosis for the worker's future prospects with attendance, said the arbitrator. e arbitrator also found that the worker's depression was limiting her ability to be at work, but the employer didn't fully consider whether it had reached undue hardship since it was operating with the information that the worker had no restrictions. However, it should have realized the worker was being hindered by her disability, said the arbitrator. In addition, while the department told the worker a few times her employment would be in jeopardy if her attendance didn't improve, it never pursued a disciplinary approach and continued to tolerate her absences as non- culpable. e worker was never formally warned that termination was pending. e department was ordered to reinstate the worker, pending medical clearance for her return to work, and to accommodate her to the point of undue hardship if accommo- dation is deemed necessary. If it was deter- mined by doctors that the worker was unable to return to her client services officer posi- tion or an available alternate position and at- tend on a reasonable basis, the department would be entitled to terminate the worker. For more information see: • Newfoundland and Labrador and NAPE (M. (S.)), Re, 2016 CarswellNfld 411 (New- foundland and Labrador Arb.). Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 3 Cases and Trends 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 compliance under the Ontario's sexual violence and harassment plan act, managing hidden disabilities, harassment investigations, and HR and payroll implications of employee terminations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. The medical information the employer had indicated no restrictions or limitations.

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