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Accommodation is a Two-way Street

What is an employer to do with an employee who demands changes to a job, without ever having done the job? A recent arbitration decision, Child Development Institute and the Canadian Union of Public Employees, local 2132 (June 21, 2012), unrep. (Charney), considered this issue.

The grievor succeeded in her application for a full-time family violence clinician position. Prior to being awarding the job, the grievor had worked for the employer in a part-time capacity. She expressed great enthusiasm and no reservations when she accepted the job. Almost immediately thereafter though, she requested changes to the job’s design. These changes initially were expressed as a preference and were not supported by medical documentation. The grievor seemed to think her changes would be a better way to run the program. The employer disagreed.

Shortly before commencing the job, the grievor raised a concern as to trauma and then provided documentation that she was suffering from serious depression. Her psychiatrist recommended that the employer implement all of the job design changes identified by the grievor.

Although the arbitrator queried, “why one would apply for a job and then without ever trying to do it, decide that it needs to be accommodated”, given the psychiatric evidence that doing the work, as constituted, would either continue or worsen the grievor’s depression, the arbitrator found that she required accommodation. After a few months – which the arbitrator excused as a reasonable period of time – the employer offered the grievor her choice of two possible reintegration plans. The grievor refused both on the basis they did not exactly fit with the accommodation she required. The employer’s third offer of accommodation also was refused.

The arbitrator was critical of the grievor’s intransigence finding that she had a duty to explore the possibilities of the accommodation offered by the employer. According to the arbitrator, “What works and what doesn’t work is an inexact science and to be able to forecast that nothing will work except the exact accommodation that the grievor has sought is a difficult proposition …. It would be more understandable to me that if she attempted the work hardening process and then if it didn’t work she continued to be unable to function, that could be dealt with.”

Given the employer’s limited funding and the funding required to achieve the grievor’s preferred accommodation, the arbitrator found ”a classic example of undue hardship”. He also concluded that the employment relationship had completely broken down and it was inconceivable she could return to work. Accordingly, the arbitrator dismissed the grievance.

This decision is a good reminder that there, in fact, are limits to the duty to accommodate and that employees must work with their employers as part of the accommodation process, not simply make unreasonable demands.

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Accommodation is a Two-way Street

Balancing Rights of Privacy with Accommodation of Invisible Disabilities: Employers Have Rights and Employees Have Obligations Too

An employer’s duty to accommodate employees with disabilities to the point of undue hardship is well known and particularly challenging when it comes to accommodating employees with invisible disabilities, such as mental illness. What has been less thoroughly canvassed are the obligations of employees seeking accommodation, particularly when it comes to the disclosure of medical information that would otherwise be private. A recent arbitration board decision: Complex Services Inc. (c.o.b. as Casino Niagara and Niagara Fallsview Casino Resort) v. Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 thoroughly and thoughtfully considers these very thorny issues and how they must be balanced.

At issue in the case were two competing grievances: a union grievance alleging discrimination and harassment in the accommodation process including the employer’s imposition of an unpaid medical leave of absence and an employer grievance alleging failure on the part of the grievor to provide medical evidence to support her accommodation demands. The grievor, a security associate, claimed two disabilities: one physical with respect to which the employer had implemented accommodation requirements and one mental that was the source of the dispute. The grievor advised the employer of the accommodation she required for her mental illness (which included certain shift times and days worked and “to only deal with one matter at a time” with respect to certain managers only and with union representation present), but, in no uncertain terms, refused to provide medical documentation in support for confidential medical privacy reasons.

In a unanimous decision, the chair of the arbitration panel, George Surdykowski, succinctly sets out each party’s respective rights and obligations in the accommodation process. His findings include the following:

  • “In the purely technical sense of the term, an employee has an ‘absolute’ right to keep her confidential medical information private. But if she exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences, because an employee has no right to sick leave benefits or accommodation unless she provides sufficient reliable evidence to establish that she is entitled to benefits, or that she has a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided.” [para. 86]
  • “The Human Rights Commission’s Policy indicates the employee has an obligation to ask for accommodation and to provide sufficient information, including necessary otherwise private confidential medical information, to establish the accommodation required, and to participate in and facilitate both the search for and implementation of accommodation – whether or not the accommodation available is ‘perfect’ from the grievor’s subjective perspective. The employer has a legitimate need for sufficient information to permit it to satisfy its accommodation obligations. An employee can neither expect accommodation if she withholds the information to establish that she requires it, nor dictate the accommodation required.” [para. 88]
  • “Accommodation is a matter of equal treatment required by the Code. It is not intended to be, and no employee is entitled to, a superior working arrangement merely because that is what she wants or thinks is best.” [para. 89]
  • “The cases demonstrate that the following otherwise confidential medical information will generally be required for accommodation purposes:

1. The nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness).

2. Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for same).

3. The restrictions or limitations that flow from the disability (i.e. a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative duties).

4. The basis for the medical conclusions (i.e. nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect).

5. The treatment, including medication (and possible side effects) which may impact on the employee’s ability to perform her job, or interact with management, other employees, or customers.” [para. 95]

  • “It is cases of invisible disability, particularly mental illness, that questions most often arise about an individual’s request for particular accommodation and the adequacy of supporting information. The employer is entitled to seek confirmation or additional information from an appropriate medical health professional to obtain further information if there is a reasonable and bona fide basis for doing so. … Although an [Independent Medical Examination] is a resource of last resort, there are cases in which one is necessary and appropriate. An employee who exercises her right to refuse the incontestably intrusive IME when one is objective justified may find herself unable to continue or return to the work.” [para. 118]

The decision is a balanced consideration of what is required to make the accommodation process succeed in cases of invisible disabilities. To the extent that it thoroughly outlines both the employer and the employee’s role in this process, it provides welcome guidance for employers.

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Balancing Rights of Privacy with Accommodation of Invisible Disabilities: Employers Have Rights and Employees Have Obligations Too

Not Required to Mitigate With Demotion Post-Constructive Dismissal

The Ontario Court of Appeal has released its decision in Chandran v. National Bank, 2012 ONCA 205 upholding the trial decision. The trial decision is a cautionary tale for employers.

Mr. Chandran was a 18 year employee of the Bank having worked his way up from account trainee to senior manager. An informal employee satisfaction survey conducted by a HR manager revealed that Mr. Chandran engaged in bullying behaviours. Upon reviewing the results of the survey, Mr. Chandran’s boss concluded he should be removed from supervisory duties. He asked the HR Manager to identify potential openings to which Mr. Chandran could be transferred. On Mr. Chandran’s return from vacation, his boss and the HR manager told him about the general allegations, but refused to provide examples or specifics. Mr. Chandran denied the allegations. The Bank then issued a final warning letter that concluded he had engaged in disrespectful treatment of employees and colleagues contrary to its code of professional conduct and harassment and discrimination policy. The Bank relieved Mr. Chandran from his supervisory role and offered two alternate positions. Both alternate positions were relatively comparable to the senior manager role, without supervisory responsibilities.

At trial, the Bank maintained it did not have to conduct a proper investigation, and that it did not have to have cause for discipline because the two positions were comparable and did not constitute a demotion and constructive dismissal. Mr. Chandran argued both jobs were at a lower grade level resulting in lower compensation and lower prestige and that his trust in the Bank had been destroyed having not been given a chance to defend himself. His career path to future promotions had been jeopardized.

The trial judge found in Mr. Chandran’s favour. The court was critical about the lack of proper investigation conducted to support such serious discipline and harm to a long-term employee’s career. According to the court, a reasonable person in Mr. Chandran’s position would believe his employment future would be significantly limited and terms and conditions of employment substantially changed. This constituted a constructive dismissal. The court further held that, “having been issued the serious discipline … and forced to accept either of the positions which were not equal in terms to the one he held, Mr. Chandran would have been subjected to ‘an atmosphere of embarrassment or humiliation’”.

The Bank also quibbled with Mr. Chandran’s actual mitigation efforts. Although Mr. Chandran secured another management role with another bank within 14 months, the Bank maintained that he should have applied to other lower-rated positions open within the Bank and worked harder to find such a position. The court disagreed. It found that 18 months constituted reasonable notice but reduced this to 14 months in light of when Mr. Chandran secured alternate employment.

On appeal, the Bank did not contest the finding of constructive dismissal, but challenged the trial judge’s conclusion that Mr. Chandran was not required to mitigate his damages by accepting one of the positions offered by the Bank. In a unanimous decision, the Court of Appeal found no palpable and overriding error in the trial judge’s conclusion. It similarly found no fault with the trial judge’s decision to increase Mr. Chandran’s award of costs by $20,000 because the Bank had not accepted a reasonable offer to settle.

What are the key takeaways from this decision? There are (at least) three: (1) a proper investigation with a full opportunity to respond is essential to support disciplinary action, (2) long-term employees deserve additional consideration before disciplinary decisions are made, and (3) demotions are humiliating and embarrassing even if dressed up as a transfer thus removing any obligation to mitigate by acceptance.

Chandran v. National Bank of Canada, 2012 ONCA 205 (CanLII)

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Not Required to Mitigate With Demotion Post-Constructive Dismissal

Paid Leaves Are Deductible From Personal Emergency Leave

As employers have long maintained, paid leaves that overlap with the purposes for which personal emergency leave is granted do count towards those personal emergency leave days.

Personal emergency leave was introduced to Ontario workplaces in September 2001 when the Employment Standards Act, 2000 came into force. Employees of employers with 50 or more employees are entitled to a total of 10 days of unpaid leave each calendar year because of a personal illness, injury or medical emergency; or the death, illness, injury, medical emergency or urgent matter concerning a prescribed family member. Many employers, of course, provide paid leaves for these same purposes such as sick pay, bereavement leave and personal days. Loss of earning benefits paid as a result of a workplace accident under the Workplace Safety and Insurance Act, 1997 also overlap. The question that immediately arose was whether personal emergency leave days were an additional entitlement to whatever an employer already provided by way of paid leave or whether the bank of 10 personal emergency leave days could be deducted whenever an employee used a paid leave for the same purpose.

From an employer’s standpoint, paid leaves are difficult enough to manage let alone 10 personal emergency leave days on top of this. For this reason, and with the assistance of the Ministry of Labour’s own policy, employers adopted the position that if an employee opts to use a paid leave then the employee has effectively designated the absence as a personal emergency leave day.

Communications, Energy and Paperworkers Union of Canada, Local 333 challenged this position and Ministry of Labour policy by referring to arbitration an employee’s grievance that his four paid bereavement leave days to which he was entitled under his collective agreement should not have been deducted from his bank of 10 unpaid emergency leave days. Arbitrator Marilyn Nairn disagreed and found that it was not permissible to add the statutory entitlement to the collective agreement entitlement. The Union applied for judicial review of the arbitration decision. The Divisional Court. has recently released its decision dismissing the Union’s application for judicial review. In doing so, the Court held that the Arbitrator’s decision was logical, considered and intelligible. It held that that it was a reasonable interpretation of the combined effect of the statutory entitlement and the collective agreement entitlement. Accordingly, Ontario employers may continue their practice of deducting paid leaves from the statutory bank of personal emergency leave days.

Communications v. IKO Industries, 2012 ONSC 2276 (CanLII).

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Paid Leaves Are Deductible From Personal Emergency Leave

Release No Bar to Wrongful Dismissal Claim

A recent decision of the Ontario Supreme Court, Rubin v. Home Depot Canada Inc., 2012 ONSC 3053, has some potentially dangerous implications for employers and the agreements they make with their employees.

The plaintiff, a competitive shopper, was employed by Home Depot for 19.75 years and was 63 years old when his position was eliminated. At the termination meeting, Home Depot presented him with an offer of 28 weeks’ pay in lieu of notice that it said was to “exceed our obligations under the Employment Standards Act” in exchange for a release. It did; but only by .25 of a week’s pay. The plaintiff accepted the offer and signed the release before leaving the termination meeting, although the letter indicated that he had one week to review.

Shortly after signing the release, the plaintiff realized that he’d made a mistake and he attempted to negotiate a better severance package. Home Depot refused and relied upon the release.

The Court found the release to be unconscionable and set it aside. In doing so, it reasoned that it actually did not matter how much more than the statutory requirements the offer represented, “but, whether in the circumstances, it is so unreasonable as to be grossly unfair”. According to the Court, this determination comes from assessing the situation as a whole. In the Court’s assessment, the notice period was “grossly inadequate” and “sufficiently divergent from community standards that it ought to be set aside”. In particular the Court held as follows: “The idea that, in the modern day, a twenty-year employee, moving to the end of his expected working life, who is fired without cause, for reasons reflected in an internal re-organization of the company, would receive only six months’ notice, is far removed from what the community would accept.” The Court also faulted Home Depot for being misleading in suggesting that he would not be paid at all if he didn’t sign the release and in taking advantage of the plaintiff’s vulnerability and the power imbalance in its favour. The Court thus set aside the release and set the reasonable notice period at 12 months’ salary and benefits.

The Court’s willingness to intervene, not because the termination letter was misleading, but because it determined the agreement was grossly unfair, is of concern. It creates unpredictability if employers are not able to rely on compromise agreements reached with their employees because the employee may simply be able to renege without consequences.

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Release No Bar to Wrongful Dismissal Claim

Employee Privacy On Work Computers To Be Decided By Supreme Court

The Supreme Court of Canada has granted leave to appeal the Ontario Court of Appeal’s decision in R. v. Cole, 2011 ONCA 218. Mr. Cole, a teacher, was charged with possession of child pornography and unauthorized use of a computer after a computer technician accessed his laptop to perform a virus scan and verify the system’s integrity. In doing so, the technician found a hidden folder on the hard drive containing nude sexually explicit photos of a grade 10 student. The technician reported this to the principal who, in turn, reported it to the school board. The school board that employed Mr. Cole turned over the laptop and two discs of the images to the police who searched them without a warrant. Mr. Cole challenged the charges against him on the basis that the police had infringed his Charter right against unreasonable search and seizure because he had a reasonable expectation of privacy in the contents of the laptop.

Other critical background facts include :

  • Mr. Cole was a member of the IT committee and aware that computer technicians could access laptops connected to the system to maintain the integrity of the school’s information network;
  • the school board owned the laptop, but permitted teachers to use them for personal use and to take them home during weekends and vacations; and
  • the policy and procedures manual applicable to Mr. Cole imposed some limits on personal use, but did not provide for any searches and only addressed privacy in connection with email.

The Court of Appeal had determined that the computer technician and school board’s search of the laptop did not breach any Charter rights. The technician acted reasonably within the scope of his function and Mr. Cole had no reasonable expectation of privacy with respect to his actions. The principal and school board acted appropriately given their obligations under the Education Act. The police search, however, was found to be unreasonable resulting in the exclusion of the evidence gained from the laptop and two discs.

Of concern for employers is the finding that Mr. Cole had a reasonable expectation of privacy in the information stored on the hard drive of his laptop, subject to the limited right of access by the school board’s computer technicians to maintain the integrity of the system. The decision was a good reminder that explicit policies putting employees on notice they should have no expectation of privacy in material kept on work systems are essential.

The Supreme Court, as is its practice, did not issue reasons in granting leave to appeal. The Canadian Association of Counsel to Employers (CACE) has intervened seeking that the Supreme Court articulate a broad and clear right of employer access to work computers as part of their integrated information system intended to support work.

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Employee Privacy On Work Computers To Be Decided By Supreme Court