Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2017 2 | September 27, 2017 with Brian Johnston Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Is not caring cause for dismissal? Question: If an employee is simply not doing his job and doesn't seem to care, can he be fired without prior discipline or warnings? If not, can anything justify immediate dismissal for cause? ACCOMMODATION on page 11 » Employee co-operation in accommodation process Question: If an employee requests specific accommodations but refuses to supply any information about her medical issue or restrictions, is the employer obligated to meet the requests? Answer: No. If the employer's request for information was reasonable and necessary to allow it to evaluate the need for and ap- propriate form of accommodation and the employee refuses to supply that informa- tion, the employer does not have to meet the requests and will be relieved of its duty to accommodate. While the burden of finding an appropri- ate accommodation lies primarily with the employer, workplace accommodation is a two-way street. e law seeks to balance the employee's right not to be discriminated against with the employer's legitimate inter- est in a safe and productive workplace. e Supreme Court of Canada has been clear that employees have a duty to assist in and facili- tate the search for accommodation (Renaud v. Central Okanagan School District No. 23). It is not only an employer's right, but its responsibility to seek sufficient information so it can verify and understand the need for accommodation and to identify specific accommodation needs. is may include medical information and documentation. For their part, employees requesting accom- modation have to provide reasonably suf- ficient information to facilitate the process. For example, if an employee makes a request not to work at particular times on the basis of a disability, the employer may be entitled to relevant medical information supporting the need for this specific accommodation (Rhijnsburger v. Wal-Mart Canada Corp.). In Bottiglia v. Ottawa Catholic School Board, the Ontario Human Rights Tribunal dismissed the complaint after finding that the employee had failed to participate in the employer's reasonable request for medical information in the form of an independent medical exam. In a well-known Nova Scotia case, Hal- liday v. Michelin North America (Canada) Ltd, a board of inquiry denied a complaint of discrimination on the basis of disability. Despite initiative taken by the employer, the employee provided only a "very confusing and vague picture" of the source of his dis- ability. e board determined that at the stage of examining the employer's duty to accommodate, the employee had an obli- gation to identify the disability with some specificity and a treatment plan. e vague information provided did not enable the em- ployer to fulfill its duty to accommodate. As the board put it, in the accommodation pro- cess, the employer "cannot begin looking for (accommodation) unless it knows what it is looking for." Of course, there are limits as to what infor- mation an employee must provide to support an accommodation request. When an em- ployer unjustifiably requests medical infor- mation, the employee's refusal to provide the information does not justify a failure to ac- commodate. For example, in Cole v. Bell Can- ada, the Canadian Human Rights Tribunal found that the employer's demand for medi- cal information supporting an employee's request for modified working hours to allow her to breastfeed her child was unjustified. No supporting information was required in the circumstances given that the employee had just returned from maternity leave. Ultimately, the information required to al- low an employer to understand and explore appropriate accommodations will vary from case to case. Employers should only request information that is genuinely required in or- der to understand and assess the request for accommodation. In the view of the Alberta arbitration board in Capital Health Authori- ty v. U.N.A., Local 33, some types of informa- tion that can reasonably be required include: • e nature of the illness or disability • Whether it is permanent or temporary • Any restrictions and limitations • How the medical conclusions were Answer: It is not impossible, but it is un- common. Where an employee is simply not doing the job and does not seem to care, the gen- eral rule is that you cannot dismiss without prior discipline or warning. is has been called the duty to warn. Without some com- munication, the employee may not share the employer's perspective and may, in fact, be- lieve she is doing the job — after all, wasn't the employee paid last week? Courts view dismissal as a measure of "last resort." Consider Richardson v. Davis Wire Industries Ltd., where an employee was caught on video repeatedly sleeping on the job. e court said that sleeping on the job by itself would not have justified dis- missal in the circumstances (although the dismissal of the employee was otherwise justified on the basis of dishonesty). e bar for termination without warning or prior discipline seems high. To guard against liability, an employer should generally provide a clear warning to the employee that performance is inade- quate and that improvements must be made within a specified time. e employer should confirm that the employee understands this warning. en, the employee should be giv- en a reasonable opportunity to improve. Nevertheless, there are exceptional cir- cumstances where not doing the job can jus- tify summary dismissal without prior warn- ing — but it requires an added dimension such that it amounts to serious misconduct. In Dollco Corp. v. Frobel, the Ontario Labour Relations Board decided that an employee's behaviour amounted to a single act of seri- ous misconduct justifying summary dis- missal. e employee had taken advantage of periods of reduced supervision, when he was supposed to be working and training a new employee, to sneak out of the work- place and go work on a car in the parking lot. e board noted that the employee had done so knowing it was contrary to company rules. In cases where an employer wants to summarily dismiss an employee without any prior warning and discipline, it will be particularly important that whatever duties and expectations that the employee failed to meet were clearly established. Ultimately, whether certain behaviour justifies summary dismissal depends not only on the misconduct itself, but on consid- erations such as an employee's length of ser- vice, disciplinary record, and the presence of any mitigating circumstances. Not doing the job or not caring alone, absent prior warn- ing, usually does not suffice. For more information see: • Richardson v. Davis Wire Industries Ltd., 1997 CarswellBC 702 (B.C. S.C.). • Dollco Corp. v. Frobel, 2012 CarswellOnt 11713 (Ont. Lab. Rel. Bd.).

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