Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS worker and her manager to see how they could help the worker remain in the workplace, but the worker thought she was going to be fired and was upset. The following year, there were still attendance concerns. In the 2008-09 fiscal year, the worker had used 24 paid sick days and 95 days of special leave unpaid (SLUP) — the latter a type of leave available when paid sick leave was used up. In December 2009, the worker was referred to the employee assis- tance program (EAP) and a func- tional abilities report form (FARF) was provided for the worker's doc- tor to complete to help the depart- ment assist the worker with her at- tendance. The worker's psychiatrist com- pleted the form and indicated the worker had no work restrictions nor any reason for the worker to miss work. Over the next fiscal year, the worker's attendance im- proved, though it was still consid- ered excessive with 44 SLUP days used after her sick leave was ex- hausted. However, things got worse in the 2012-13 fiscal year, when the worker used 149 days in total of sick leave and SLUP days. The in- tegrated disability manager dis- cussed it with the worker, who said she had some anxieties about an- swering the telephones. Attendance worsened By January 2013, it became appar- ent that the worker's attendance record was worse than the previ- ous three fiscal years combined. The disability manager asked the worker for additional medical information and provided a new FARF. The worker's doctor indi- cated that the worker had no re- strictions on returning full-time. The worker returned to work on March 4, 2013, but only lasted three days before going off for the rest of the month. The manager was aware the worker had shown behavioural issues and requested more information from the doc- tor about the worker's attendance issues. The doctor indicated they were discussing medication changes and counselling, and the worker had "good potential for im- provement" in her attendance. The worker returned to work on April 1 but by June, she had exhausted both sick leave and vacation leave, and she had only worked four days that month. By July 2013, the worker had al- ready taken nine sick days and 22 SLUP days out of 68 working days in that fiscal year. She was advised her attendance needed to improve and if an accommodation was identified, the department would work with her and the union. The worker mentioned she had been diagnosed with depression, which was why she missed 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 sup- porting her absences. The manag- er of employee relations met with her twice to advise her that things needed to improve or her job was in danger. The worker told the manager she had colitis, which affected her attendance. She submitted anoth- er FARF from another doctor indi- cating she had colitis in addition to depression, though no functional limitations were identified and she was to be monitored. The worker showed an inability to work more than a few days or partial days before being absent again after October 2013. After meeting with the disability manag- er, the worker was present roughly half of the days from May to July. The worker's doctor said 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. The department still didn't have any indication of the worker's limi- tations. On Oct. 7, it placed the worker on "special unpaid medi- cal leave" pending an indepen- dent medical examination. This resulted in an assessment that the worker was fit to return to work immediately. The department informed the worker in January 2015, that she had full clearance to return and her attendance would be moni- tored and further attendance issues would subject her to dis- cipline, up to and including dis- missal. The worker's attendance re- mained at acceptable levels for a few months, but in April and May she was absent 24 days. Another report from the worker's doctor indicated the main problem pre- venting her from working regu- larly was her depression, and they were adjusting her medication. At this point, the department considered termination. Worker dismissed after absence There continued to be gaps in the worker's attendance, with her missing seven-and-a-half days in July and four days in August with no explanation. The worker was at work for two full weeks, but took a SLUP day on Aug. 31. The next day, the department dismissed the worker for innocent absenteeism, with the termination letter stating: "Despite our efforts to work with you to improve your attendance, your level of absentee- ism remains excessive and contin- ues to negatively impact opera- tions." The worker's union, the New- foundland and Labrador Asso- ciation of Public and Private Em- ployees (NAPE), contested the dismissal. Arbitrator Karen Hollett found that the department used a rea- sonable standard and the worker's leave was excessive. In addition, the unpredictable nature of the absences aggravated the problem, as did the lack of concrete infor- mation on whether things would improve. However, Hollett found that wasn't reasonable for the depart- ment to "continue on the path to termination" when there may have been indications things were improving. The worker attended work for two weeks without an absence and had four days' total leave in August, but it terminated her after she was absent Aug. 31, as if it had been waiting for her next absence. Since the last doctor's re- port in June indicated the worker's medication was being changed, it would have been reasonable to see if there was a correlation between the improved attendance in Au- gust and the new medication re- gime, said Hollett. Hollett also found that the worker's depression was limit- ing her ability to be at work, but the employer didn't fully consider whether it had reached undue hardship since it was operat- ing with the information that the worker had no restrictions. How- ever, it should have realized the worker was being hindered by her disability, said the arbitrator. In addition, while the depart- ment told the worker a few times her employment would be in jeopardy if her attendance didn't improve, it never pursued a disci- plinary approach and continued to tolerate her absences as non- culpable. The worker was never formally warned that termination was pending. The department was ordered to reinstate the worker, pending medical clearance for her return to work, and to accommodate her up to the point of undue hardship if accommodation was deemed necessary. If it was determined by doctors the worker was unable to return to her client services officer position or an available alternate position, and attend 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 (Newfound- land and Labrador Arb.). < Absences pg. 1 Depression, colitis contribute to worker's ongoing absences Photo: KieferPix (Shutterstock)

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