HomeMy WebLinkAbout1989-1526.Markowski.90-09-25 ONTARIO EMPLOYEs DE £A COURONNE
CROWN EMPL 0 YEE$ DE L 'ON TA Fifo
180 DUNOAS STREET wEST', .SUITE 2700, TORONTO, ONTARIO, MEG 1Z8 T£LEPHONE./TF:LEPHONE., (4 ~) .326-7288
180, RUE ~'UNDA..¢; OUEST. ~UREAU 2;'O0. TORONTO [ONTARIO). M5G ?Z8 I".4CS~M;LE/TELECOPIE : (475) 32~-1396
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANC~ 8ETTLEHENT BOARD
BETWEEN
OPSEU (Markowski)
G~ievor
The Crown in Right of Ontario
. (Ministry of Health)
Employer
- and -
E. K. Slone Vice-Chairperson
· S. Hennessy Member
A. Stapleton Member
FOR THE L. Trachuk
GRIEVOR Counsel
Cornish Roland
Barristers & Solicitors
FOR THE M. Quick
EMPLOYER Legal Services Branch
Ministry of Health
HEARING June 21, 1989
October 4, 5, 6 1989
2
AWARD
The griever was terminated on May 25, 1988 on the grounds of
excessive absenteeism. She grieves that the termination was
unfounded and unjust, and seeks reinstatement and monetary
redress.
It is also argued on her behalf that the right of the
Employer to terminate for "innocent absenteeism" has been
superceded or overridden by the provisions of the Ontario Human
Mights Cod~, S,O. 1981, which require employers to accommodate
employees with disabilities or handicaps that need not affect
their ability to perform the duties of their'jobs. It is argued'
that the grievor's absenteeism in this case was as a result of
such a disability; namely, a predisposition to disabling attacks
of anxiety and depression.
This grievance was heard over four days in June and October
1989. Lengthy written submissions were submitted in argument,
the last of which was received by the Board in duly 1990.
Facts
The griever was a computer programmer with a branch of the
Ministry which collects information on health facilities, data on
physicians, and provides computer-support services to the
Ministry. Her seniority dates to early 1971. We heard nothing
3
to suggest that her attendance between 1971 and 1981 was anything .
other than normal. Her'problems seem to have begun in 1981.
The 9rievor missed a lot of work in each year between 1981
and 1988. The following were her noted absences:
Year Sick Days
1981 60
1982 43,25
1983 28
1984 46,5
1985 40.25
1986 54,73
1987 33.1
1988 (5 mo,) 50
We were also supplied, for comparison purposes, with the
relevant .group averages for the last three years of the grievor's
employment:
1986 7,88
1987 10.16
1988 6.35
These figures are not in dispute.
The Employer's Evidence
According to the evidence tendered by the Employer, the
grievor's absenteeism was a source of considerable controversy
4
and dialogue from at least as far back as 1983. We heard
testimony from a series of managers and supervisors covering that
period,
Dave Stewart was the grievor's supervisor in 1982. He
recalled that she was reassigned to him after experiencing
problems with another supervisor (Allen Ross), Her attendance
became a problem later that year, and he had to talk to her about
it in early 1983. He confirmed the discussion in a memo which was
marked as Ex,2 at the hearing.
"February 10, 1983
MEMORANDUM TO' Helen Markowski
SUBJECT: Review of Attendance (1981 and
1982) ....
As agreed this memo is to document the discussion and
agreements reached in our meeting of January 20th on
the above topics, ' ....
Atte~.dance
A review of your sick days during the past two calendar
years shows that in 1981 you were absent for 60.0 days
and for 43.5 days in 1982,
You stated that a substantial part of Your sick days
have been and continue to be related to recurring
health problems; approximately 4 to 5 years ago you
developed a severe case of pneumonia which you felt was
not treated properly by your physician and your
recovery was aided only by the intervention of one of
your working.associates; since that occasion you have
had recurrences and have lost your faith in medical
doctors, particularly your current physician,
Since you feel your health still has not reached its
peak, we discussed possible solutions to having you
realize better health thus reducing the number of days
you need to be absent, These were-
(1) To seek'the advice of your cur'rent doctor to have him
5
refer you to a specialist for a consulting opinion on
your health, or
(2) To contact the Employee Health Services Branch of the
Ministry of Government Services, perhaps Dr. O'Silva,
to see whether they could assist you in realizing
better health and as a result improved attendance.
From our conversation, I am confident that you are
'committed to (1) and (2) above particularly in lieu of
the fact that for most of your sick days you'are losing
25% pay due to lack of accrued sick leave credits. In
addition, your commitment will see you attempting to
arrange appointments to realize (1) and/or (2) above in
order to improve your health.
Your attendance will continue to be reviewed with the
expectation that your situation will.'improve. Should
it not improve other procedures covered in the Manuals
of Corporate Policy and Procedure, and the Ontario
Manual of Administration could be invoked to address
the situation ....
J.D. Stewart,
Finance and Administrative
Supervisor"
The 9rievor at the hearing denied having received this
memorandum, We are satisfied, however, on a balance of
probabilities that she did in fact receive it, although she may
nog have a current recollection to that effect.
As noted, at that time the grievor was 'attributing her
absenteeism to chest problems arising out of a bout of pneumonia,
and not to any alleged condition involving anxiety or depression,
According to Stewart, her attendance improved for a while.
She was then seconded for a time to COMSOC, and was returned in
July 1983 because of unspecified "problems" According to
Stewart, she soon started having absence problems again under his
supervision. He felt that her absences were adversely affecting
her ability to do the job. He reported in particular one project
that was not completed in time because of absenteeism. It was
his opinion, albeit unsupported b'y any statistical analysis, that
the 9rievor's absences showed a pattern of Mondays and Fridays,
which, if true, would point to a more culpable than innocent form
of absenteeism.
Stewart reported to his manager (Ex.3) on February 16, 1984,
and gave his final assessment of the grievor's attendance
situation:
Memo to' T. Moon, Manager '~
From: J.D. Stewart
-....From an administrative Derspective, Helen's
absenteeism within the attendance credit program is
deplorable, and far exceeds the branch average of 6,6
days. Attendance records indicate she was absent in
1983 for 28.0 days, of which 9,0 days were either a
Friday or a Monday. I have completed a review of her
overa]] attendance record within the Ministry of Health
and can only conclude that she is not capable of
reasonable regular attendance.
.... I believe that Helen is underachieving, and wi]]
continue to Find career problems un]ess she makes a
series of positive moves to do a bette~ 3ob of getting
along with her working associates, and of adhering to
accented and existing working rules."
In early 1984, the grievor was transferred to a working
group under the supervision of Vivian Farre]~ (Simmons),
According to Farrell, the grievor had approached her saying that
she had been having problems in her group, namely relational
problems with her supervisor, and wanted to join Farrell's group
7
because of her (Farrell's) reputation for fairness within the
branch. After discussion with the manager Farrell agreed, hoping
that the change in environment would give the grievor another
chance. At this time Farrell met with the grievor, and confirmed
their discussion in a letter dated January 24, 1984 (Ex.4):
"This is to confirm our discussion of January 13, 1984.
.... You stated, that .you were ill on all occasions and
that, on several occasions during 1983, your illness
was a direct result of relational problems between you
and your supervisor, and what you perceived as your
supervisor's unreasonable treatment'of you. You
indicated that you are confident that your recent move
to the Community Health Maintenance Section will result
in improved attendance at work. I informed you that,
owing to your'attendance record, your managers are
concerned about your health and its effect on your
ability to carry out your work-related
responsibilities, Z advised you to seek medical.
attention if you are ill, and you agreed that you
would, if necessary, I also informed you that you
would be required to submit to an employee-paid (sic)
medical examination if, your attendance record continues
to suggest possible chronic health problems, and that
continued excessive absenteeism could be grounds for
formal disciplinary action up to and including
dismissal ..... "
Farrell testified that the grievor confided that she had a
mistrust of doctors. Farrell made it clear to the grievor that
management expected improvement in attendance.
By mid-1984 the grievor's attendance began to deteriorate,
Farrell recommended to the grievor that she find one doctor that
she could trust, instead of the several she was currently seeing.
There is no evidence that this suggestion was followed.
8
By late 1984, Farrell noticed a deterioration in the
grievor's relationships with her co-workers, and.this seemed to
correlate with increasingly poor attendance. Farrell offered to
go with~the grievor for counselling to the Employee Health
Services. This offer, it appears, was declined.
After a lengthy absence of 20 days in early 1985, the
grievor was called to a meeting with Farrell, who conveyed
management's concerns. The grievor was warned of possible
disciplinary action. After a short period of improvement, by May
1985 the grieVor's attendance had deteriorated again. On June
27, 1985, a mandatory medical examination of the grievor was
ordered by the Dfrec~or
"...this is to confirm that I have requested your
referral, for a medical examination under the authority
of a[ticle 51.9 of the Collective Agreement.
We are concerned, Helen., about your consistently
high level of absenteeism, along with its effects on
your work performance, and are endeavoring to improve
the situation. Over the past four years you have been
absent a total of ~77.75 days (44 per year average). In
1985 to date you have missed 37 days due to illness.
As mutually agreed, the medical examination will
be conducted by Dr. Soars of the Flemington Health
Centre. I have written to Dr. Soars to arrange the
appointment, and am expecting your cooperation in
attending, as a duty assignment."
-Prior to leaving the group, in October 1985 Farrell did a
performance appraisal (Ex.5). Excerpts of ~hat appraisal are
shown below:
"Qua]ity of work is acceptable when Helen is present at
the office; however, owing to her frequent absences,
9
she does not produce the amount of work desired."
"Helen's manner is often overbearing. People are
alienated by her frequent mood changes (from excessive
friendliness to total ignorance of them)"
"SUMMARY:
Helen successfully performs the technical aspects of
her job. Her overall performance is, however, marred
by her high rate of absenteeism and by her apparent
inability to form and/or sustain good relationships
with others."
"WHAT CAN MANAGEMENT O0 TO SUPPORT ~NPLOYEE'S EFFORTS
· TO INPROVE?
Management has, in the, past, attempted to provide
positive working environments for Helen and, as late as
the beginning of this appraisal perigd., provided (at
her request) a transfer from another group in an
attempt to help her overcome her relational and
attendance problems. This has had little positive
effect, The'onus ~s now on Helen to address and
overcome these problems.
"V, Farrell"
Although she felt that the grievor was dependable when at
work, it was Farrell's opinion that absenteeism impaired bed
ability to produce the amount of work desired. In a post-
appraisal interview, the grievor did not quarrel with the
appraisal and did mot add any comments of her own as sba'might
have done,
In February 1986 F~rrell became a manager, And Bob Beach
became the grievor's supervisor. Later that year Beach came to
Farretl and complained to her about the grievor's attendance, A
meeting with the grievor, a union representative and a number of
management people present was held in February t987 to discuss
the grievor's problems. Minutes of that meeting were tendered in
10
evidence as Ex.8. It was Farrell's view that the grievor's
attitude during the meeting was uncooperative and challenging.
She learned then that the 1985 mandatory medical never happened
because the grievor had refused to sign a medical release. The
following are some relevan~ extracts from the minutes of that
meeting:
"Vivienne asked Helen about the outcome of the
employer-paid medical examination initiated in 1985
when she (Vivienne) was Helen's supervisor, Helen
responded that plans for the medical-had been dropped
after Vivienne ceased to be her supervisor,
Vivienne stated that she would be recommending that the
Director refer Helen for a medical examination, and
that management required a prognosis relating to
Helen's future attendance as well as assurance that her
health problems are properly identified and
treated .....
Helen declined %o commit herself to a medical at the
meeting as she and Norma wished to discuss ~t ~urther.
,She requested that the reasons for the medical be
documented, and Vi¥ienne assured her that they would
be.
Norma asked when Helen would be expected to make a
decision regarding the medical. Lisa explained the
process of initiating the medical and stated it"could
take several weeks. Norma rhea asked if a letter from
Helen's doctor, stating Helen's health problems, would
be an acceptable substitute for a medical. Lisa
responded that it might, and Vivienne reiterated the
requirement for a prognosis.
Vivienne. expressed concern that Helen understand the
seriousness of management's concerns and the possible.
repercussions if her attendance does not improve to an
acceptable level. Helen stated that she did appreciate
those concerns and fully understood her position ....
Lisa exp]ained that .... further steps (i.e. transfer,
demotion, long-term sickness benefits, dismissal) could
be considered by management if a poor attendance
picture could not be turned around.
Farrell testified that she did a statistical study and found
the grievor's absences to be 4 to 5 times the group average. She
stated that the grievor's absences were par~ of the reason
the branch required contract consultants to contribute to the
work output. She explained that when they finished their own
assigned projects, the programmers typically help each other,
which the grievor was not in a positiQn to do if absent. She
conceded that the grievor often worked evenings or weekends to
complete her projects, but she was not unique in this respect.
Overtime was an expected part of the programmer's job,
Farrell offered the view that an employee's stress and
anxiety could be accommodated, depending on the frequency of
occurrences and the efforts to deal with it.
Bob Beach also.gave evidence. He testified that he took
over from Farrell as the grievor's supervisor in June 1985. He
kept track of. the grievor's absences. It was his perception that
the 9rievor put in fewer hours than anyone else, He gave her
fewer assignments because she was away so Buch. He stated that
some high profile projects could not be assigned to the 9rievor
because she was not reliable. He felt that the grievor's
absences were harmful to morale within the group,
By March 1987, the Director Mr. McGee was involved and the
process for ordering a mandatory medical was renewed, On March
27, ~987, McGee wrote to the grievor (Ex.14)-
"Further to V. Simmons' memo...I am initiating the
process to refer you fOF an employer-paid medical
examination ....
it is hoped that the medical will iaentify ways in
which you may successfully deal with your health
problems and give management a prognosis concerning
future attendance levels.
Your attendance record over the last six years (1981-
1986) has been consistently unsatisfactory (117.
absences totalling 272.6 days). Buring 1986, your
record was worse than during the preceding four years,
with 26 absences totalling 54.6 days. So far, this
year, you have been absent three times for a total of
4.7 days. This rate of absenteeism has precluded, you
from being a fully productive member of the branch..."
In April 1987, the grievor informed' management that she
would see Dr. Soare, who had been her physician for some time.
On 'July 22, 1987, Dr. Soare issued what can only be
described 'as a clean bill of health (Ex.16)'
"I am writing to you with regard to the complete.
physical examination you were subject to on June 4,
1987.
I am pleased to let you know that I was not able to
detect any major abnormalities on clinical examination,
and all the lab results came back within normal limits.
Therefore, I feel that as far as your health is
concerned the outlook is excellent - my only
reservation being the large number of cigarettes you
smoke and possible health complications due to
· smoki ng."
Steve Russell was an Acting Manager from July 1987-. He
testified that he received Ex.16 on September 9, 1987. He knew
that the grievor's attendance was being monitored, It was
reported to him that there was a deterioration in October and
November 'of 1.987, which prompted him to. meet with the griever to
discuss the situation, He told her that unless she had good
reason f~r her absences her job would be in jeopardy. He felt
that' co idering the recent clean'bill of health, in the absence
of further medical evidence the griever was abusing the system.
He wrote a letter December ~5, 1987 confirming the meeting
(Ex.~8)-
"This will confirm discussions which took place Dec. 3
andJa, 1987, concenning your health and attendance...
Dur!ng the meeting Z expressed concerns about your
health and the effect it is having on your ability to
attend work. In September 1987, as a result of a
mandatory medical referral, you provided a medical
certificate from Dr. Scare which stated that based on a
.. .medical examination conducted June 4, 1987 *the outlook
for your health is excellent' As you have been absent
forlover 23 days since June 4, 1987 the mimistry is
concerned that you are unable to attend work due to
i]l~ess, It was also conveyed to you that your
abse. nces result in a disruption of the work in the
section and service to our clients.
Thi~ will confirm that because of the mimistry's
concerns, we want to ensure that you are receiving the
proper medical attention. Therefore from now until
Mar~h 31, 1988 you are required to provide a medical
certificate from a legally qualified medical
praCtitioner for every absence due to illness or injury,
certifying that you are unable to attend your dutieS]'""'
The griever's reaction to the requirement of medical
certificates was to launch a grievance. (That grievance was not
before t,his panel of the board, and therefore we cannot formally
dispose of it. However, some later comment on the grievor's
conduct in this i'nstance may be necessary.)
On February 22, 1988 he wrote to the grievor to request
certificates for absences on February 2-5 and t6 (Ex.lq).
On March 1, 1988 he wrote to the grievor to request
certificates for those same absences, plus more recent ones on
the 26th through 29th of February (Ex,20).
On March 29, ~988 he wrote to the grievor to request
certificates for those same absences plus more recent ones March
8-10 and 22-25 (Ex.21).
:.On Apri.1 6, 1988 he wrote to the grievor to request
certificates for those same absences plus more recent ones on
.March 29 through April 5 (Ex.23).
Not.a sinQle written or other response to these letters was
received, although it should be noted that the grievance had been
launched and Russell was aware of it.
On April 14, 1988, Russell wrote to the grievor (Ex.24):
' "I regret that we were unable to meet today as
requested in my letter of 5 April 1988.
.... Contrary to Br. $oare's opinion, your attendance
has continued to deteriorate. Between June and
December 1987 you were absent fourteen times for a
total of 26.41 days and, so. far this year, you have
been absent eight times for a total of 23 days.
Furthermore Z understand that your current absence is
likely to continue for about a month.
Considering the above, Z feel it is necessary to.obtain
a more current prognosis regarding the state of your
health and what may be expected in terms of attendance.
You are therefore required to undergo another medical
examination in accordance with Article 52.9 of the
Collective Agreement.
Please submit, in writing to me, the names of three
physicians you consider suitable to perform the
examination, by 6 May 1988, so that arrangements for
the referral may be made. I suggest that, in order to
maintain continuity, Dr. Z. $oare would be a good
choice.
Upon your return to work, I look forward to meeting
with you to further discus8 your attendance .... "
Russell testified that he never received any response to his
requests for the names of physicians. He then met with Human
Resources and decided to wait 30 days to 'see if any response was
forthcoming. By May 25, 1988, ~he decided' that enough was enough
and issued a letter of termination (Ex.25):
". .... On April.14, 1988, I wro%e to you again requiring
you to submit to a second mandatory medical
examination. You were requested to respond by May 6,
1988; however, I have not received a response to date.
In view of your poor attendance record and your failure
to c~operate in obtaining a current medical prognosis,
I have no alternative but to dismiss you from
employment effective May 25, 1988 ..... -"
During this time, the grievor had been to see a Dr. Wi lkins,
who produced two shockingly deficien~ medical certificates
(Exs.3OA and 3OB):
Ex.30A (undated):
"This is to certify that Mrs. Helen Markowski has been
under my care from April 8/88 to 3-4 weeks and has now
recovered sufficiently to be able to regular .
Iight duties, (sic)
Ex.30B dated May 12/88:
"This is to certify that Mrs. Helen Markowski has been
under my care from April 17/88 to June 1/88 (sic) and
has now recovered sufficiently to be able to
regular duties."
Although the evidence was less than clear, it appears that
Ex.30A was supplied to the grievor's union representative, Errol
Xavier, who passed it on to the employer, who (rightly.) rejected
it as being too uninformative. Ex.30B was then obtained and
supplied to management. It is not clear whether Russell saw it
prior to terminating the grievor, but considering-'how
uninformative the certificate was 7ftt?e turns on that question.
After being terminated, the .grievor,again saw Dr. Wi?k~ns
who provided her with the following letter of prognosis (part of
Ex.9):
"C.H. Wilkens, M.D.
May'31/88
Ms. Helen Markowski suffers from extreme anxiety and a
reactive depression. A definite prognosis is difficult
at this time. Also has been disabled from April 8/88 to
present."
Russell admitted that he didn't know at the time of the
termination that stress and anxiety was the grievor's problem.
He stated that he relied on Dr. $oare's report which had reported
the grievor in good physical health. 'He stated that he did not
consider simply rescinding the termination after getting Dr.
Wilkins letter of May 31, but instead he made her an offer of
transfer if she would take treatment. This offer was not
followed up.
17
Russell stated that his decision to terminate was influenced
by a number of factors; primarily her accumulated attendance
record, but also including the grievor's failure to attend the
meeting called for April 14, all of her other failures as he
perceived them, and by the lack of any meaningful prognosis which'
might have shed some light on the future attendance that
management might be able to expect.
The~Grievor's E~dence
The grievor testified that she is a single-support mother of
a teenage daughter. She stated (not challenged) that she or her
daughter always ca~led in when she was sick. She candidly
admitted that'she was a very private person.
At the time of her examination by Dr. Scare in 1987, she
testified that she-was in very poor emotional'condition, but
admitted that no mention of this was made in his report. She
suspected that Vivian Farrell and Mr. McGee directly influenced
Dr. Scare, although there was no credible evidence to support
this allegation. She stated that she did not ask Dr. Scare to
add anything about her emotional condition, on the advice of the
union. Dr. Scare did not offer her any treatment for her
emotional condition, and did not refer her to a specialist.
She stated thQt her frequent absences were sometimes for
colds or other viruses, but usually were because of symptoms of
18
stress- dizziness, not sleeping, nausea, blackouts, sleepwalking,
complete inability to function.
It was her perception that management was continually
harassing her because of her absences.
She stated that she would have been well enough to return to
work on June 1, 1988, but for the dismissal which caused her to
relapse into depression. She claims that she was never told that
any of the medical certificates (Ex.3OA-and 3OB) were inadequate.
She also displayed, under cross-examination, a serious
misconception as to the meaning and import of a prognosis.
She claim~ that she ignored Russell's April 14 letter on
advice from her union representative Errol Xavier, who said he
would speak to Russell on her behalf. She also claims that her
reason for not giving a medical' release in 1985 was also on the
advice of her union, and was.based on an assumption that whatever'
information management might obtain would only be used against
her. She felt that the meeting in February 1987 was purely
harassment. She did not attend the meeting called by .Russell for
April 14, 1988 because, she said, she was too sick.
The grievor stated that she never independently sought out a
psychiatrist because she felt that her problems were situational,
She testified that she has had some treatment since her
dismissal, and could return to work and attend faithfully under
19
"proper conditions" (unspecified).
Further Medical Report
At the conclusion of the last day of hearing, the grievor's
counsel sought and was granted an adjournment of the bearing
until a. future date, for the purpose of (possibly) providing the
Board with. a further medJca~ report. It was represented to the
Board that such a report had not previously been provided because
the grie¥or had only just come to realize the need for same.
The' Board was later informed that the grievor had eTected
-not to ?1la any further medic&l evidence, and the parties agreed
to argue the case in written submissions.
The Law
+
The union takes the position 'that the right of the employer
to discharge for "innocent absenteeism" has been superfeded by
the provisions o¢ the Ontario Human Riqhts Code.
The jurisprudence of this Board, and in labour arb'itration
generally, has long recognized "innocent absenteeism" as a ground
for dismissal, The test is threefold; there must be "excessive"
absenteeism; there must be no reasonable expectation of
satisfactory attendance in the future; and there must have been a
legitimate "culminating incident" which in this non-disciplinary
20
context may De no more than a suitable occasion to review the
employee's al;tendance situation. The cases cited by the employer
which support, the employer's right. %o terminate for innocent
absenteeism are, as far as we are concerned, good law.
The rat.ionale for the right to terminate for innocent
absenteeism was explained in Dixon GSB ~42§/82 (Samuels) a% 0,8:
"It is now established that an employer may terminate
the employment of an employee whose .chronic
absenteeism is so persistent that it can be said that
the employer has lost the benefit of his contract with
the employee...The reasons for the absenteeism may be
perfectly blameless. Termination of employment for
absenteeism is no longer considered.a disciplinary
matter. It is simply a case of ending a relationship
from which the employer is no longer receiving the
benefit of his bargain with the employee."
Excessive
As for what qualifies as excessive, we adopt the statements
i~ Re Molson's Brewery (Ontario) Ltd. and United Brewery Workers,
Local 304 (1984) 13 L.A.C. (3d) 112 (Brandt) at D.122:
"...whether or not an employee's record of attendance
is excessive, that is, whether or not it goes
substantially beyond the limits of normal expectation.
In that connection a number of factors are relevant.
ft is important to consider the nature and duration of
the absenteeism, whether it is a single extended
absence which may be less disruptive to an employer
or whether it is sporadic and unpredictable. It is
also relevant to consider that nature of the work -
.. performed by the employee, and the impact that his or
her absence may have on production methods.
Finalty, it is necessary to consider the extent to
which the particular grievor's record deviates from
that of other employees. It is not sufficient for the
employer to prove the grievor's statistical record in
isolation as this would not necessarily establish that
the absenteeism was 'excessive.'"
Pro~inosis For Reasonable Attendance
The question of whether reasonable attendance in the future
could be anti'~ipated was addressed in Ernond GSB ¢ 842/85
(Verity); at p.2-3:
"..the Grievor was absent for variety of medical
reasons. These reasons include sore throat, colds,
viral infections, stomach flu, abdominal pains,
diarrhea, bladder infection, corneal abrasion, and eye
infection. Buring the years 1982 and 1983, many of
the absences were caused by anxiety and emotional
stress from an unhappy marriage relationship. For
the most part, the Grievor's absences were
intermittent absences of one or two days' durations."
at p.lO:
"...based on the recurring absenteeism problem in
1985, the causes of those absences, the frequency and
the duration of the absences, the Employer's repeated
attempts to change the pattern, the Board finds that
the Employer quite properly concluded in August of
1985, that there was little likelihood of regula~
attendance in the future."
Culmi.nati'n.q Incident
As for what is required by way of a culminating incident, we
are content to adopt what was said in Re Victoria Hospital,
London'j and London and District Buildin.q Service Workers Union,
Local 220 (1979) 24 L.A.C. (3d) 172 (Ont.) per J.F.W. Weatherill,
at p.173:
"...In discipline cases, it is clearly established, we
think, that there must be some occasion for the
imposition of discipline in any particular case. Where
such occasion arises, that is where there is an
instance of employee misconduct, then the employer
may, in considering the nature and extent of the
penalty to be imposed, have regard to the whole of
the employee's record (subject to any collective
agreement restrictions.) The "culminating incident"
then, is a proper occasion for the consideration of the
history of the employee's conduct in discipline cases.
In cases of "innocent absenteeism", where the
22
employer is contemplating the termination or
interruption of an employee's employment, there must,
we think, be some proper and appropriate occasion for
it to.consider and act on that possibility. The
"culminating incident" need not necessarily be an
actual instance of absence from work, in our view. It
might arise, perhaps,' upon the receipt of some medical
advice bearing on the employee's condition even
though that condition may not yet have led to the
employee's absence from work. In discipline cases,
the "culminating incident'. must in itself be grounds
for discipline, and it then constitutes the occasion for
considering the record that is, for taking a general
view of the employee, In cases of "innocent
absenteeism", what is required is that there be some
proper and appropriate occasion for assessing the
employee's attendance and health, and for considering
the question whether or not. the employee can give
reasonable attendance in the future."
The Ont&rio Human Riqhts Code
Counsel for the grievor has argued that under the Human
RiQhts Code there is a statutory obligation on employers to
accommodate persons with disabilities or handicaps; namely, s.4
which provides that every person ",,. has a right to aqua1
treatment with respect to employment without discrimination
because of ... handicap".
This provision was commented on and applied in Re General
Tire Canada Ltd, and United Rubber Workers, Local 536 (1986) 26
L.A.C. (3d) 95 (Ont., M. Picher) at p.96: ..
"The evidence establishes that the grievo~ suffers
from recurring anxiety, a condition for which he has-
received medical treatment for over 10 years. By
means of medication he is able to controt his attac~s
of anxiety, although when they do strike he may be ..
incapacitated for a period of from four to six hours.
The grievor's physician, Dr. 'Brian Williams, testified
without contradiction that the grievor's condition in
respect of anxiety attacks will not be cured and can
be expected to cause him to be absent from work
between seven and ten days in. a working year. The
arbitrator accepts that evidence. ! am also satisfied,
however, that a significant part of the grievor's
absenteeism record is not attributable to his anxiety
attacks.
Ontar;o's .Human Rights Code, S. 0.1981, c. 53,
establishes in s.4, that every person "has a right to
equal treatment with re'spect to employment without
discrimination because of ... handicap". As Lord
Benning has succinctly put it, there cannot be one
law for the courts and another for the arbitrators.
am satisfied on the medical evidence adduced that the
grievor's condition in respect to anxiety attacks is a
handicap for which he should not suffer discrimination
in his employment. Any conditions for his
reinstatement must, thehefore, make reasonable
allowance for some degree of absenteeism attributable
to his medical condition, Moreover, given the
agreement of the parties to .reinstate.the grievor, in
light of the evidence of his condition, the arbitrator
is satisfied that these principles do not offend the
intention of the laarties."
Counsel for the grievor drew our attention to a publication
emtitled "6uideline$ for Assessing Accommodation Requirements for
Persons With Disabilities Under the Ontario Human Rights Code,
1981, as Amended". Relevan% portions to reproduce are:
"These guidelines contain the Commission's
interpretation of the provisions relating to
accommodation and undue hardship in the Code."
"K. For persons with disabilities, the Code guarantees
equal treatment if the person is capable of performing
or fulfilling the essential duties that accompany the
exercise of his or her rights. This requirement
recognizes that, in some circumstances, the nature or
degree of a person's disability may preclude him or
her from being able to perform the essential duties.
However,. a person cannot be found incapable of
performing these essential duties unless an effort has
been made to accommodate his or her needs.
Accommodation of a person's individual needs is
required by the Code unless such accommodation
would cause undue hardship for the person (or
organization or company) responsible for making it." -'
M. Accommodation of needs includes, for example,
making buildings and transportation accessible, making
print information available in alternative formats such
as tape, or braille, translating auditory information
into visual or tactile modes for persons with a hearing
impairment, adapting equipment or providing special
devices or supports so that the person with a
disability will be able to function independently, and '
altering the ways in which tasks are accomplished in
order to allow for a person's disability .......
N. The essence of accommodating people who have
disabilities is individualization. That is, each person
with a disability must be considered individually in
order to determine what changes can be made to a
situation, including the physical environment,, to
accommodate his or her needs. There is no formula
for accommodation to alleviate the barriers which
confront people with disabilities ..... "
Oismosition
This was a most troubling and frustrating case. It was
%roublin9 because the grievor is obviously a person with serious
proD?ems which mo compassionate person could ignore. It was
frustrating because time and time again through the entire saga
the grievor demonstrated abysmal judgment and a Chronic
unwillingness to do those things which might have avoided the
dismissal and which might have enabled and moved us to help her
at this late juncture.
The written record (as extensively reproduced above)
contains the most reliable evidence Of what was occurring, and we
accept it At face value. On the evidence as a whole, a number of
conclusions are inescapable:
25
The grievor has difficulty getting along with supervisors,
and, to some extent, co-workers. This has held true for every
,. supervisor of which we are aware. Zt is not credible when she
attributes her problems to harassment, or claims that'her
condition was "situational." Zf the latter statement was
intended to lead us to believe that a change of envimonment would
produce a magical cure, then it faits entirely %o so convince us.
She had several such changes, with nothing more than very
transient improvement in her attendance, Clearly, her relational
problems are chronic and tend to manifest as health problems,
We accept the employer's position that the absenteeism was
excessive. The statistics are persuasive. Despite her evidence
to the contrary, the gr~evor did not ¢roduce an adequate amount
of work. Sheer quantity is no% the only measure; being there and
avaiTable is also im¢ortant. We accept the evidence, of the
employer's witnesses to the effect that the grievo'r was not able
to perform a reasonable workload, and because of her absences was.
not assigned work that she would otherwise have been given.
As for satisfying the employer that some reasonable
progna$~$ exists, the 9r~evor fa~Ted miserably. She-tended
throughout to be inordinately preoccupied with her. own privacy,
when she should have been forthcoming with information that wou]d
have given management some rea] insights into her condition. She
misinterpreted attempts to help her as harassment, further
polarizing the situation. In an absenteeism situation, the onus
25
is on the employee to explain the absences, The grievor
steadfastly resisted meeting 'this onus. -..
The grievor's reaction to Russell's demand for medical
certificates for short absences, for which a separate grievanoe
was launched, deserves some comment. We are not in a position
formally to decide whether or not she was technically within'her
rights to refuse the demand. However, on a first impression
basis the request was not unreasonable and ought to have been
complied with. The grievor would only have helped her cause by
complying, even if later some board might have concluded that she
ought not to have been put under such an obligation, There are
times when taking an adversarial attitude is harmful per se to
the psychological environment. A little cooperation would
probably have caused Russell to forestall drastic action which he
was entitled, but not obliged to take.
We are satisfied that there was a proper culminating
incident. By May 25, 1988, management had a good reason to
review the grievor's'situation, and was entitled to say that on
the basis of everything that had gone on over.the past seven
years it was..~.iving up on the grievor.
We are satisfied that management acted appropriately at alt
times, in its own interest of course, but always sensitive to the
grievor's rights and needs. There was legitimate concern for the
grievor expressed' by a'number of people at various levels of
27
management.. The griever's level of cooperation varied between
the merely adequate and downright hostile and defiant.
Quite apart from the propriety of the employer's position
taken in May of 1988, we are entitled to consider the,grievor'$
current situation. Regrettably, to this .day we Have never been
provided with any reliable medical information giving a proper
prognosis. Zt is not enough for the griever to testify that she
is welt enough to return to work. Her history over six or seven
years was so poor as to place a much higher onus on her. Ne
should have been provided with medical reports attesting to her
condition. The lack thereof is entirely the grievor's fault, and
she has accordingly failed to meet the evidentiary 'onus that is
properly upon her.
'Had.we such evidence, it would necessarily show one of three
things; that the griever has:
(1) a manageable condition,
(2) an unmanageable one, or
(3) no more condition altogether.
'The employe~' and this Board are entitled to know which
the case.
If the condition were indeed cured or non-existent (i.e.
~3), then we would have thought that the grievor would be
enthusiastic to have such reported to us, We must infer the
contrary.
If there is an unmanageable condition (i.e. ~2), then the
grievor would not be entitled to return to work, and her
reluctance to have same reported to us might be understandable.
If and only if the grievor had a proven manageable condition
(i.e. ~1), then the issue of reasonable accommodation could
arise. If such were the case, the grievor ought to have provided
us with the information. It is our view that the Human Rights
Code provisions are there to pro~ect employees whose conditions
either do not affe¢~ their work, or are manageable. It is a
perversion of those laudable objectives got an employee to refuse
meaningful information about his or her condition and yet seek to
be accommodated and shielded by the Code. The General Tire
(above) case illustrates the principle. On the facts of that
case, the.employee was. taking medication to control his
condition' The'doctors reported that some absences of 7-~O days
per year might still result, With all the information out in the
open, it is easy to forge an accommodation that does not penalize
the.employ, ee for his handicap, We dare say that if the employer
in that case had not been provided with full information, and had
the evidence not shown that the employee was taking treatment for
his condition, the result would have been quite different.
rn the result, the grievor in this case has not discharged
the onus to demonstrate either that her attendance in the future
will ~mprove, or that she has a handicap that is manageable and
29
which can be accommodated by the employer. Indeed, on the
evidence before us we must say that the contrary has been proven.
The grievance must accordingly and, regrettably, fail.
Dated at Toronto this25t~ay of September ,1990.
Eric K. Slone, Vice-Chairperson
"I DISSENT" (Dissent to follow)
Shaun HennesSy, Member
Arnold Stapleton, Member