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.

An employer’s ambiguous disciplinary policy and lenient past disciplinary practice has caused it to lose an otherwise strong just cause dismissal case.

After several security lapses at its Port Huron uranium conversion facility, Cameco Corp. conducted a “security readiness test and audit” of its night shift on April 17, 2011. At approximately 3:30 AM two managers from Cameco’s Security Department breached the facility’s security perimeter. Although the breach set off an alarm and was captured by monitors in the main gate house, the would-be intruders were not intercepted. Instead, the managers were able to travel unimpeded to the main gate house where upon arriving, they discovered the Grievor, a plant guard and supervisor, and one of his subordinates fast asleep.

Both employees were fully reclined and had their feet up on the desk. The Grievor had also removed his safety boots.  It was subsequently acknowledged that the Grievor had watched a movie while on shift and that contrary to company policy, he had filled out his shift log at the beginning rather than the end of his shift. As a result, the Grievor’s log was not an accurate reflection of the assignments or events that had actually happened during his shift.

Given the Grievor’s multiple infractions of company policy and the significant safety risk posed by his dereliction of duty, Cameco terminated his employment, claiming just cause.

At the arbitration hearing that followed, the union denied that the Grievor had intended to fall asleep.  Alternatively, the union argued that the Grievor was ill and that he had only taken off his safety boots because his feet were sore.   The union further argued that Cameco should be prevented from relying on the Grievor’s movie watching and poor log keeping since Cameco had not instituted a clear policy on either of these matters nor had it consistently enforced any sort of rule regarding such conduct. However, most importantly, the union argued that because Cameco’s disciplinary policy listed “sleeping on the job” as misconduct which warrants only a verbal or written warning, it could not depart from its own policy and institute a punishment that was more severe.

Despite recognizing the importance of maintaining the facility’s security, the arbitrator nonetheless ordered the Grievor’s reinstatement (albeit to a lower level position and according to the terms of a “last chance” agreement). The arbitrator agreed with the union that Cameco had effectively condoned the Grievor’s conduct with respect to the movie watching and log keeping and therefore could not now rely on either of those matters in support of its decision to terminate the Grievor’s employment. The arbitrator ruled that the “Grievor’s falling asleep and apparent ‘nesting’, given his duties and the potential catastrophic consequences of his failure to attend diligently to them, is on the legal standard, just cause for termination”.  However, the ambiguity in Cameco’s disciplinary policy and its apparent past practice of issuing warnings to employees who had previously been found sleeping meant that the employer did not have just cause.

Cameco Corporation v United Steelworkers, Local 8562 -  http://www.canlii.org/en/on/onla/doc/2012/2012canlii2594/2012canlii2594.pdf

L’article dont il est question dans le présent billet a été rédigé par Andrea Raso Amer et Tony Schweitzer.

Bien que le Canada et les États-Unis entretiennent d’étroites relations et que leur gouvernance et leurs lois présentent de nombreuses similarités, il existe entre les deux pays des différences importantes et distinctes, dont il faut tenir compte dans la conduite d’activités commerciales transfrontalières. La façon d’attirer, de gérer et de fidéliser les employés est notamment assez différente au Canada et toutes les entreprises qui songent à brasser des affaires au nord de la frontière devraient être informées de certains points très importants à prendre en considération.

FMC vous invite à lire un article traitant de différents sujets de façon approfondie, notamment les permis de travail, les membres de la famille qui accompagnent les travailleurs, les heures supplémentaires et les congés.

Pour lire l’article, veuillez cliquer ici (en anglais seulement).

This article was written by Andrea Raso Amer and Tony Schweitzer.

While Canada and the United States share very close bilateral ties, and there are many similarities in our governance and laws, there are also some very distinct and important differences that are relevant to cross-border business. One key difference exists in attracting, managing and retaining employees in Canada. Any company contemplating business north of the border should be made aware of these very significant considerations.

This article contains in-depth discussions on various topics including work permits, accompanying family members, overtime, and leaves of absence.

To read the full article, please click here.

A recent Ontario decision serves as an important reminder to employers : if an employee fails to provide medical documentation in a timely manner, any discipline imposed must take into account the entire context, including the employee’s length of service.  Employers – particularly those who are unionized – who wish to consider terminating the employment of long-service employees for failure to provide medical documentation should ensure that they repeatedly follow up with such employees about providing the documentation prior to terminating.

Mr. Ferreira started working for the Yellow Pages Group Company as a sales consultant in 1989. On January 12, 2009, Mr. Ferreira began a short-term disability medical leave with a diagnosis of severe hypertension and work-related stress. On January 20, 2009, Mr. Ferreira attended a medical assessment with his physician and faxed a completed Attending Physician’s Statement to Yellow Pages.

Yellow Pages’ benefit administrator sent Mr. Ferreira’s physician a follow-up questionnaire on February 4, 2009, requiring more information. The physician did not complete the questionnaire and, as a result, the benefits administrator terminated Mr. Ferreira’s short-term disability benefit payments on February 16, 2009.  The benefits administrator also advised that if additional medical documentation was not received from Mr. Ferreira by March 3, 2009, his file would be closed.

On February 18, 2009, Yellow Pages sent a letter to Mr. Ferreira advising him that since his disability claim had been denied, he was obligated to return to work by February 20, 2009. Mr. Ferreira followed up with Yellow Pages by phone. During the call, Yellow Pages advised Mr. Ferreira that his employment would be terminated unless he returned to work or provided the required medical evidence to support his absence by March 3, 2009.

Mr. Ferreira attended at his physician’s office on February 25, 2009. The physician wrote a letter to the benefits administrator explaining that Mr. Ferreira remained unable to work and sent the letter by regular mail to the benefits administrator on March 2 or 3. As the letter was not received by the deadline, on March 5, 2009, Yellow Pages terminated Mr. Ferreira’s employment. Although Mr. Ferreira immediately faxed a copy of his doctor’s letter to Yellow Pages when he was advised of the termination, this had no impact on Yellow Pages’ decision.

Mr. Ferreira grieved the termination through his union, the Canadian Office and Professional Employees Union. The arbitrator dismissed the grievance. In the arbitrator’s view, Mr. Ferreira knew he needed to arrange for his physician to provide medical information within a certain time frame or there would be serious sanctions. Mr. Ferreira unreasonably left the matter in his doctor’s hands and he did so at his peril.

The Divisional Court dismissed the Union’s application for judicial review of the arbitrator’s award.

The Court of Appeal allowed the appeal and remitted the matter back to a different arbitrator for reconsideration. In the Court of Appeal’s view, the arbitrator failed to consider the matter contextually and to balance the nature and seriousness of Mr. Ferreira’s misconduct with the severity of the sanction imposed – termination of employment for a delayed submission of medical documentation in the context of an unblemished 20-year employment relationship.

Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448 (CanLII)

The Public Service Labour Relations Board has reinstated a 27 year federal civil servant who was fired for spending between 50 – 75% of his workday surfing the internet, including pornography.

The adjudicator held that the employer did not have a clear-cut computer-use policy and in particular, it did not define excessive personal computer use (some undefined amount of personal use was permitted by the employer). In addition, the employee had an excellent record, was long-term and he apologized immediately and explained that the only reason for the excessive computer use was that he didn’t have enough work to do.

The adjudicator said that this wasn’t really a time theft case, as time theft usually indicates a fraudulent intent to steal time. However, she found that the employee violated employer policies, misused the employer’s equipment that was for work purposes and engaged in behaviour “that has no place at work”.

Although the termination was overturned, the employee was given a lengthy without pay suspension from the date of termination (November 2009) to the date of the decision (August 2011) due to the serious nature of the misconduct.

Andrews v. Deputy Head (Department of Citizenship and Immigration): http://pslrb-crtfp.gc.ca/decisions/fulltext/2011-100_e.asp