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HomeMy WebLinkAbout2005-2261.McNaughton.06-02-01 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2005-2261 UNION# OLB538/05 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (McNaughton) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Ernest A. SchIrm Koskie Minsky LLP BarrIsters & SOlICItorS FOR THE EMPLOYER AlIson E Renton Counsel LIqUor Control Board of Ontano HEARING January 18 2006 2 DeCISIon Thls declslon pertalns to a dlscharge grlevance dated October 4 , 2005 flIed by Ms Mellnda McNaughton The case was argued on the basls of an Agreed Statement of Fact and no Vlva voce eVldence was called The agreed facts are as follows AGREED STATE:MENT OF FACTS The Employer and the Unlon (herelnafter "The Partles") agree that the followlng agreed statement of facts lS belng entered lnto thls matter wlthout pre]udlce and precedent to any other matter between the Partles and may be supplemented by elther Party by viva voce eVldence 1 The Grlevor commenced employment as a casual warehouse worker at the London Retall SerVlce Centre In 1999 On Aprll 25, 2005 she was promoted to a full tlme warehouse worker 3 at the London Retall SerVlce Centre 2 Effectlve March 25, 2003, the Grlevor was termlnated from her posltlon A Grlevance was flIed and the Grlevor clalmed that she had an alcohol addlctlon whlch was accepted by the Employer Mlnutes of Settlement were entered lnto dated Aprll 11, 2003 (herelnafter "the 2003 Mlnutes") whlch set out varlOUS treatment requlrements by whlch the Grlevor had to follow A copy of the 2003 Mlnutes are appended hereto as Appendlx "A" - 3 3 Pursuant to the 2003 Mlnutes, the Grlevor was relnstated 4 By letter dated September 12, 2003, the Grlevor was termlnated from her posltlon A Grlevance was flIed and was referred to the GSB as the subJect matter of GSB # 2071/03 Agaln, the Grlevor clalmed that she had an alcohol addlctlon whlch was accepted by the employer Mlnutes of Settlement were entered lnto dated February/March 2004 (herelnafter "the 2004 Mlnutes") whlch set out varlOUS requlrements, and addlctlon treatments for the Grlevor to follow and the Grlevor was relnstated The Grlevor was represented by unlon counsel durlng thls proceedlng A copy of the 2004 Mlnutes are appended hereto as Appendlx "B" - 5 On Tuesday, September 13, 2005, the Grlevor was absent from the workplace She returned to work September 14, 2005 She dld not brlng a doctor's note to substantlate her absence wlthln three (3) calendar days as requlred by paragraph 10 of the 2004 Mlnutes The Grlevor otherwlse malntalned an attendance rate wlthln the parameters set out In paragraph 10 of the 2004 Mlnutes 6 The Grlevor was lssued a letter dated September 20, 2005 for not brlnglng In a doctor's note wlthln three (3) calendar days and a meetlng was scheduled for September 28, 2005 A copy of the September 20, 2005 letter lS appended hereto as Appendlx "c" - 7 The grlevor attended the September 28, 2005 meetlng along wlth her unlon representatlves, Steve Saysell, Joe Hollyman and Jlm McNelly Robert Cote and Mark Wagner attended the meetlng as the Employer's representatlves At the meetlng, and for the flrst t lme , the Grlevor provlded a doctor's 4 note dated September 13, 2005 that lS appended hereto as Appendlx "D" The Grlevor stated In the meetlng that on September 13, 2005 she called her doctor's offlce for an appolntment but was not able to obtaln one The Grlevor dld not obtaln an appolntment wlth her doctor untll September 23, 2005 Durlng thls appolntment, she asked her doctor to back date the note to September 13, 2005, whlch the Grlevor dlsclosed to the Employer durlng the September 28 meetlng At the meetlng, the Grlevor stated that she knew and understood the terms of the 2004 Mlnutes At the meetlng, the Grlevor dld not relate her absence or her fallure to brlng In a doctor's note due to an alcohol addlctlon There lS no lssue wlth respect to whether or not the Grlevor was actually III on the day In questlon 8 By letter dated October 3, 2005, the Grlevor was termlnated A copy of thls termlnatlon letter lS appended hereto as Appendlx "E" - 8a A stage 3 grlevance, dated October 4 , 2005 was flIed A copy of the grlevance lS appended hereto as Appendlx "F" - 9 Paragraph 11 of the 2004 Mlnutes state The Parties agree tha t failure to meet any of the requirements of the agreement for the two (2) year period following the Grievor's reinsta temen t shall result in the Grievor's termination without the right to redress through the grievance and/or arbi tra tion process except to establish the veracity of the facts upon which the Employer relied 10 Paragraph 12 of the 2004 Mlnutes states 5 The Parties agree that an arbitrator's jurisdiction shall be limited solely to determining the facts upon whi ch the Employer relied, as set out in paragraph 11 above, and the Parties agree that an arbitrator shall not have the jurisdiction to substitute the penalty of discharge 11 Artlcle 12 4 of the Collectlve Agreement states After five (5) days absence caused by sickness or injury, no 1 ea ve with pay shall be allowed unless a certifica te of a legally qualified medical practi tioner is forwarded to the Employer certifying as to the nature of the sickness and tha t the employee is unable to attend to his/her official duties Notwi thstanding this provision, the Employer may require an employee to submit the certifica te required hereunder in respect of a period of absence of less than five (5) days 12 The Partles put to the Arbltrator the followlng questlon a) Should the Grlevor's termlnatlon be upheld for breachlng the 2004 Mlnutes? 13 The Unlon puts to the Arbltrator the followlng questlons Do paras 10, 11, 12 of the 2004 Mlnutes vlolate the HRC? If yes, are the 2004 Mlnutes vOld and/or unenforceable to the extent they vlolate the HRC? ALL OF WHICH IS SUBMITTED, THIS 18TH DAY OF JANUARY, 2006 In London, OntarlO (Attachments oml tted) 6 The 2004 Mlnutes of Settlement under whlch the grlevor had been relnstated, referred to by the partles as "the last chance agreement" (herelnafter "LeA") , lncluded paragraphs 11 and 12 set out In the agreed facts as well as paragraph 10 whlch reads 10 The Grlevor agreed that upon her return to actlve work, she shall malntaln an attendance rate, excluslve of vacatlon, pre-approved absences, or serlOUS lllness or serlOUS accldent, as follows For the flrst SlX ( 6) months followlng relnstatement, she shall mlSS no more than three (3 ) shlfts For the followlng SlX ( 6) months, she shall mlSS no more than flve (5) shlfts For the year followlng the two (2 ) SlX ( 6) month perlods, she shall mlSS no more than ten (10 ) shlfts The - Grlevor shall provlde documentatlon substantlatlng such absence wlthln three (3) calendar days upon her return to work Further, the Grlevor agrees that, wlthout exceptlon, she shall report all absences and late arrlvals In a tlmely manner, and speclflcally not less than flfteen (15) mlnutes prlor to the beglnnlng of her scheduled shlft, except In sltuatlons of serlOUS lllness and In sltuatlons as serlOUS accldent requlrlng hospltallzatlon The Grlevor shall call and speak In person wlth a supervlsor and In the event she has left a VOlce mall message before the commencement of her shlft, she shall call agaln and speak In person wlth a supervlsor to conflrm the VOlce mall message (Emphasls added) The agreed facts establlsh that the grlevor was absent on Tuesday September 13, 2005 Documentatlon substantlatlng that absence was provlded to the employer 7 only on September 28, 2005 Thus, the unlon concedes that the grlevor vlolated that requlrement In the LCA The partles agree that the grlevor suffered from an alcohol addlctlon, and that as such she was subJect to a "dlsablllty" wlthln the meanlng of s 5 (1) of the Ontarlo Human Rlghts Code, whlch In part reads 5 (1) Every person has a rlght to equal treatment wlth respect to employment wlthout dlscrlmlnatlon because of dlsablllty The unlon's prlmary argument lS based on s 5 It submlts that paragraph 10 of the LCA whlch requlres the grlevor to provlde documentatlon substantlatlng absences wlthln 3 days upon returnlng to work as well as paragraphs 11 and 12 whlch prescrlbe automatlc termlnatlon and llmlt an arbltrator's Jurlsdlctlon do not apply to other bargalnlng unlt employees The only reason the grlevor was subJected to those extra-ordlnary terms lS because of her dlsablllty, l e her alcohol addlctlon Therefore, the argument goes, those terms are dlscrlmlnatory on the grounds of dlsablllty contrary to s 5 of the Human Rlghts Code, and are of no force and effect 8 Unlon counsel acknowledged that the grlevor's absence on the day In questlon or her fallure to provlde medlcal documentatlon wlthln 3 days for that absence was not related to her alcohol addlctlon However, he submltted that that was not the relevant lssue The crltlcal fact was that the grlevor would not have been subJect to the requlrement In the flrst place, but for her past hlstory of absences due to her dlsablllty Employer counsel remlnded the Board of the well establlshed prlnclple that partles should be held to the undertaklngs made In grlevance settlements She stressed that good labour relatlons pollcy requlres that the grlevance settlements be strlctly enforced Re Braybrooke 1437/01 (Dlssanayake) She submltted that the grlevor had reaped the beneflts of the 2004 Mlnutes of Settlement, lncludlng belng relnstated In her Job, and that she was now seeklng to be relleved of the obllgatlons she had undertaken In return Unlon counsel dld not dlspute the general prlnclple that grlevance settlements must be strlctly enforced However, he submltted that any term of settlement that contravened the Human Rlghts Code lS vOld and unenforceable An arbltrator ought not, and lS not 9 requlred by any legal prlnclple, to enforce or uphold a term In a settlement whlch contravenes the Code I agree wlth the general prlnclple espoused by the employer, as well as the exceptlon relled upon by the unlon The case law clearly supports that posltlon For example, In Re Labatt Brewerles Ontarlo, (2002 ) 107 LAC (4 th) 126 (Barrett) at p 140, the arbltrator states, "I am strongly In favour of upholdlng last chance agreements unless they are In vlolatlon of the Human Rlghts Code " A well reasoned statement In that regard lS contalned In Re - DeHavllland Inc (1998 ) 74 LAC (4th) 125 (Rayner) at p 128 as follows There lS a strong pollcy reason to honour the terms of "last chance" agreements as I pOlnted out In my earller award between the partles Even If there lS some resldual power In the arbltrator to modlfy a dlscharge In the face of language slmllar to paragraph (6) , and I have grave doubts as to whether any such resldual power eXlsts, one must keep In mlnd the reasons for "never- never" or "last chance" letters They permlt the employee to have one flnal opportunlty to keep hls Job and they permlt both partles, the Company and the Unlon, to resolve cases by agreement wlthout resortlng to the costs and uncertalnty of an adversarlal process In my oplnlon the foremost conslderatlon that should be In the mlnd of the arbltrator when asked to conslder such letters should be the lntegrlty of the letter ltself If these t yp e s of agreements are subJect to 10 modlflcatlon except In the most llmlted of clrcumstances, they slmply wlII not be made As a result future employees who mlght have recelved the beneflt of one of these letters wlII be denled that opportunlty Hence the pollcy of supportlng these letter transcends the case of the lndlvldual grlevor who has falled to ablde by the terms of the letter Naturally, It lS always open to a unlon to prove that the letter has not been breached, or perhaps to prove that the letter was a legal nulllty from the beglnnlng However In the face of paragraph (6 ) I do not thlnk It lS open to the Unlon to seek a substltutlon of penalty based on compasslonate grounds whlch lS the rellef that I thlnk the Unlon seeks Even If I could grant such rellef, for the reasons set out above I would not do so In thls case no mater how sorry one feels for the grlevor I agree wlth the unlon that If the terms of a LCA are contrary to the Human Rlghts Code, the fact that the unlon and the grlevor had agreed to those terms lS lrrelevant Thls lS because the rlghts under the Code may not be walved or contracted out of See, Ontarlo Human Rlghts Commlsslon v Borough of Etoblcoke, [1982J 1 S C R 202 (S C C ) , Re - Ontarlo Human Rlghts Commlsslon v Slmpsons Sears Ltd , [1985J, 23 D L R (4 th) 321 (S C C ) Therefore, the crltlcal lssue for determlnatlon lS the lssue framed by the unlon, whether paras 10, 11 and 12 of 11 the LCA vOld because they are In vlolatlon of the Human Rlghts Code Employer counsel relled on a number of prlor arbltratlon awards In whlch last chance agreements were upheld as not vlolatlng the Human Rlghts Code Re Espanola ( Town) , (1997) 61 LAC (4 th) 149 (Marcotte) , Re Klmberly- Clark Forest Products Inc , (2003 ) 115 LAC (4 tll) 344 (Levlnson) , Re York Reglon Dlstrlct School Board, (2004 ) 128 LAC (4 tll) 317 (Craven) , Re Toronto Dlstrlct School Board, (1999 ) 79 LAC (4 tll) 365 (Knopf) , Re A 0 Smlth Enterprlses Ltd , (2000 ) o L A A No 573 (Tlms) , and Re - Labatt Brewerles Ontarlo, (2002 ) 107 LAC (4 tll) 126 (Barrett) In Re Espanola (Town) , (supra) the LCA provlded, lnter alla, that "Should Mr Howe commence drlnklng whlch lnterferes wlth hls performance or causes hlm to mlSS t lme , he shall be dlsmlssed forthwlth, and he shall not have the rlght to grleve such dlsmlssal, nor shall the unlon present a grlevance on hls behalf" On a reVlew of the eVldence, the arbltrator concluded that the grlevor breached the LCA In that "on two occaSlons the grlevor dld drlnk alcohol 12 whlch consumptlon caused hlm to mlSS work " The lssue was whether the LCA wa s contrary to the Human Rlghts Code At p 170-172, the Board wrote Further, we note that the 1990 Letter of Agreement does not requlre the grlevor to never drlnk alcohol as a condltlon of relnstatement Rather, It provldes for the grlevor not to mlSS work as a result of consumptlon of alcohol That lS, we do not flnd that In accommodatlng the grlevor's handlcap, the Employer lmposed a standard that lS hlgher than applled to other employees The partles agreed that as a condltlon of relnstatement, the grlevor was to be absent no more than the average absenteelsm In hls department In Re Sault Ste Marle (Joyce) supra, the arbltrator, as one condltlon of relnstatement, dlrected that the grlevor, who suffered from alcohollsm, was to malntaln a level of attendance at work whlch "durlng the two-year perlod must be no worse that the average for employees In hls department " In Re Sault Ste Marle (Hlnnegan) the arbltrator states at pp 13-4 "reasonable attendance lS normally measured by the employee's level of attendance compared wlth the average for other employees In hls department over a reasonable perlod of tlme " In the oplnlon of Judge Steele at p 2 [p 162 o A C ] of hls declslon In o P S E U , supra, a "fallure to meet the average attendance record could be grounds for dlsmlssal of any employee and was therefore not dlscrlmlnatory", but see Judge MacFarland's declslon In that same case, at p 4 [p 163 o A C ] that thls standard was not requlred of other employees and thus was not lawful We prefer the Vlew of arbltrator Joyce, whlch Vlew lS generally held by arbltrators as lndlcated by arbltrator Hlnnegan, that a proper standard to measure reasonable attendance lS an employee's departmental average of absenteelsm In so flndlng, we note that the grlevor's absenteelsm over 13 the course of hls employment subsequent to Aprll 30, 1990, was related to hls alcohollsm on the occaSlon of hls October 1991 accldent We further note, as was Mr Sheppard's undlsputed testlmony, that exceSSlve absenteelsm was a factor In the Employer's lnltlal declslon to dlscharge hlm prlor to Ap r II , 1990 In the result, we do not flnd that the standard of reasonable attendance as measured by the average rate of absenteelsm In the grlevor's department was a hlgher standard than lmposed on other employees In all the Clrcumstances of the case before us As to whether or not the grlevor was subJected to closer scrutlny than were other employees, we note that In each of the years followlng hls Aprll 30, 1990 relnstatement, hls rate of absenteelsm, however measured, greatly exceeded hls department average Slmply stated, that the Employer tolerated thls Clrcumstance for some three years mllltates agalnst any argument of closer scrutlny of the grlevor arlslng from the 1990 Letter of Agreement In the result, and based on all the foregolng, we do not flnd that the Employer, In the partlcular Clrcumstances of the matter before us, falled to meet ltS obllgatlon to accommodate the grlevor by way of hls handlcap We flnd, also, that based on the legltlmate and real health and safety requlrements attendlng the grlevor's work clrcumstance, that to relnstate the grlevor to the publlc works department would lead to undue hardshlp We also flnd that, In regard to the matter of accommodatlon, the grlevor has falled to fulflll hls obllgatlon to seek out successful treatment of hls treatable handlcap condltlon We also flnd that the requlrement In the 1990 Letter of Agreement for the grlevor to not be absent at a rate hlgher than hls annual departmental average lS reasonable and In llne wlth a recognlzed arbltral Vlew of that whlch 14 constltutes a reasonable standard of attendance In cases of relnstatement where the lssue lnvolves exceSSlve absenteelsm (emphasls added) In Re Klmberly Clark Forest Products Inc , (supra) , the grlevor was subJect to a LCA whlch requlred hlm, lnter alla, to abstaln from the use of non-prescrlbed drugs for 36 months and to provlde urlne samples on an unannounced basls at the employer's request The grlevor was dlscharged pursuant to the LCA The lssue before the arbltrator was whether the requlrements In the LCA breached constltuted bona flde occupatlonal requlrements (BFOR) for purposes of the Human Rlghts Code The arbltrator concluded that they were At p 367 he concluded [30] To summarlze, I conclude that the grlevor actlvely smoked marlJuana contrary to hls commltment In the LCA I further conclude that the requlrement that the grlevor abstaln from uSlng non-prescrlbed drugs for 36 months, the requlrement that he submlt to drug testlng on an unannounced basls for the same perlod and the partles' agreement that dlscharge wlll be the approprlate penalty should the test results lndlcate the presence of non-prescrlbed drugs are BFORs Consequently, the Code does not prohlblt the Company from relYlng on the prescrlbed penalty of dlscharge In the LCA and the LCA clrcumscrlbes my Jurlsdlctlon to Substltute another penalty for the dlscharge In these partlcular Clrcumstances (emphasls added) 15 In Re York Reglon Dlstrlct School Board, (2004 ) 128 LAC (4th) 317 (Craven) the grlevor was dlscharged on the grounds that he had breached a LCA In several respects At p 324 the arbltrator found as follows I am satlsfled that In respect at least of hls fallure to follow the reportlng requlrements of February 26, the grlevor was In breach of the "last chance" agreement It lS not necessary to determlne whether thls amounted to a "substantlal" breach, because It lS abundantly clear that the grlevor's fallure to attend at work on February 26 and 27 was a sufflclently substantlal breach of the "last chance" agreement Item 3 of the agreement refers to "any unacceptable or unauthorlzed absence or lateness " The grlevor's absences on February 26 and 27 were due to hls consumptlon of alcohol on February 26 At pp 327-328, arbltrator Craven consldered the lssue to be, whether the grlevor's contlnued absences and hls fallure to glve tlmely notlce of hls absences, caused undue hardshlp to the employer In my oplnlon thls hlstory demonstrates conslderable effort by the Employer to accommodate the grlevor's dlsablllty, to provlde opportunltles for rehabllltatlon, and to motlvate the grlevor to undertake and commlt to ongolng treatment Desplte these accommodatlons, and desplte the grlevor's repeated efforts to secure medlcal treatment and to draw on the support of AA, there have been frequent relapses 16 The Employer led eVldence to the effect that the grlevor's absences and In partlcular hls fallure to provlde tlmely notlce of hls lnablllty to attend at work, have created dlfflcultles In schedullng and In arranglng for the necessary work to be performed, especlally when hlgh school caretakers have been detalled to work In elementary schools In antlclpatlon of the grlevor's attendance at work I flnd that the grlevor's absences and fallures to report have lmposed hardshlp on the Employer There lS eVldence, therefore, of conslderable efforts on the Employer's part to accommodate the grlevor's dlsablllty, and eVldence too of efforts by the grlevor to address hls alcohollsm accompanled by several relapses The questlon remalns whether the Employer has accommodated the grlevor to the pOlnt of undue hardshlp To put It bluntly, when lS enough, enough? At p 330, he concluded To the extent that the grlevor's poor attendance and fallure to comply wlth reportlng requlrements were beyond hls control, the Employer was entltled to termlnate the grlevor In the absence of a demonstrated capaclty for or clear prognosls of future lmprovement The Employer was obllged to accommodate the grlevor's dlsablllty to the pOlnt of undue hardshlp That pOlnt was reached when, after a lengthy hlstory of unsuccessful attempts at accommodatlon, the further hardshlp necessarlly occasloned by addltlonal accommodatlon was not offset by substantlal eVldence of a good prospect for future performance For all these reasons, the grlevance must be denled (emphasls added) 17 In re A 0 Smlth Enterprlses Ltd (Supra) , the arbltrator noted at p 6 that the grlevor had breached the LCA In the followlng manner 18 There lS no dlspute between the partles that the grlevor breached the provlslons of the October 1999 agreement He falled to partlclpate In the recommended after-care program, as requlred by paragraph 6 He dld not produce a doctor's note for hls slck days, contrary to paragraph 8 of the agreement Flnally, hls absence on March 10, and Aprll 10-18, 2000, exceeded "one occaSlon every two months" as set out In paragraph 10 of the agreement The eVldence establlshes that the average rate of absenteelsm In the plant lS less than SlX days per year The employer's posltlon lS set out at p 7 as follows 27 The Company further denles that the terms of the last chance agreement constltute dlscrlmlnatlon prohlblted by the Human Rlghts Code In any event, Counsel suggests that the eVldence establlshes that the Company has accommodated the grlevor up to the pOlnt of undue hardshlp The Company asks me to conslder ltS ongolng unsuccessful attempts to asslst the grlevor In llght of what It characterlzes as the absence of rehabllltatlve potentlal here, and to deny the grlevance The unlon's posltlon was as follows (p 7 ) 29 The Unlon argues that the grlevor suffers from alcohollsm, a handlcap wlthln the meanlng of the Human Rlghts Code It acknowledges that the grlevor's attendance has posed serlOUS problems for the Company and that the Company has made slgnlflcant efforts over 18 the years to accommodate hlm The Unlon's representatlve submlts, however, that although the partles entered lnto the last chance agreement here In lssue In good falth, the terms of such agreement constltute dlscrlmlnatlon prohlblted by the Code, and the agreement lS thus vOld and unenforceable 30 The Unlon argues that the agreement dlscrlmlnates agalnst the grlevor on the basls of handlcap In that It subJects hlm to "unusual burdens " Speclflcally, the Unlon asserts that the agreement lS dlscrlmlnatory In requlrlng that the grlevor advlse the Company of any medlcatlons he may take, and In requlrlng that he malntaln the plant average attendance record or face dlscharge Most lmportantly, the Unlon submlts that the agreement vlolates the Code In denYlng the grlevor the rlght under sectlon 48 (1 7) of the Labour Relatlons Act, 1995 and Artlcle 8 08 of the collectlve agreement to have revlewed the penalty lmposed on hlm by the Company The Unlon further malntalns that the Company falled to accommodate the grlevor to the pOlnt of undue hardshlp, and asks me to conclude that the termlnatlon of the grlevor's employment pursuant to the last chance agreement cannot be upheld Followlng a reVlew of the eVldence at p 10 arbltrator Tlms wrote 43 Whlle It lS for the Company to establlsh that It has accommodated the grlevor to the pOlnt of undue hardshlp, ltS efforts must be vlewed In the context of what Arbltrator Rayner referred to as hls "rehabllltatlon potentlal " (See Re O-Pee-Chee Company, supra) 44 The grlevor returned to work In January 2000 pursuant to the last chance agreement The eVldence lS 19 clear that he resumed drlnklng shortly after hls return, and that he was In breach of the terms of the agreement by February 2000 45 The Unlon asks that I relnstate the grlevor on a last chance basls, wlth whatever condltlons I Vlew as approprlate Nelther the Unlon nor the grlevor suggested anythlng speclflc that the Company had falled to do In fulfllment of ltS statutory obllgatlons 46 I am of the Vlew after conslderlng all of the eVldence and the submlsslons of the partles, that the grlevance must be denled 47 The grlevor falled to comply wlth the terms of the last chance agreement, and he and the partles agreed thereln that termlnatlon of employment would result Even If the provlslons of the sald agreement offend sectlon 5 of the Human Rlghts Code, I must conclude that such dlscrlmlnatlon would be excused In the present case by sectlon 17 of the Code 48 It was agreed by the partles that regular attendance at work lS an essentlal duty of the grlevor's Job, and I am of the Vlew that the Company has establlshed that It has made efforts to accommodate the grlevor to the pOlnt of undue hardshlp (emphasls added) The unlon reI led on two Judlclal authorltles In support of ltS posltlon that the provlslon of the LCA the grlevor had breached was contrary to the Human Rlghts Code, and therefore vOld 20 In Re Ontarlo Human Rlghts Commlsslon v Galns Pet Foods Corp (1993) 16 o R (3d) 290 (Ont DlV Ct ) The LCA In questlon was held to be contrary to the Ontarlo Human Rlghts Code In two ways, one of whlch lS dlrectly relevant to the lnstant case The LCA provlded, lnter alla, as follows (a) Durlng the next twelve (12 ) months of your employment you wlll be expected to malntaln a level of attendance equal to or better than the average for the hourly rated employees In the plant The plant average wlll be calculated on a rolllng 12-month basls Fallure to meet the above requlrements at any tlme wlll result In the termlnatlon of your employment The grlevor was termlnated for non-compllance wlth that undertaklng At p 291-92, the court wrote In cross-examlnatlon, Mr Gerber, dlrector of operatlons of the respondent company at all relevant tlmes, candldly conceded that but for Ms Black's absence from November of 1984 to Aprll of 1985, due to cancer, the restrlctlve condltlon would not have been lmposed upon her (See transcrlpt of eVldence, vol 5, p 674, Ilne 14 to p 675, Ilne 3 ) It was conceded by the respondents throughout that cancer constltuted a handlcap wlthln the meanlng of s 4 (1) of the Ontarlo Human Rlghts Code, R S 0 1990, c H 19(the "Code" ) 21 Based upon the clear admlsslon of Mr Gerber, It lS apparent that lrrespectlve of Ms Black's prlor hlstory of absenteelsm, the proxlmate If not prlmary cause of the restrlctlve condltlon In the Aprll 29 letter arose dlrectly from Ms Black's absence due to her dlsablllty Whlle It certalnly would have been open to the respondents to warn Ms Black, upon her return to work In Aprll of 1985, that she was requlred to malntaln a reasonable level of attendance, absent whlch, she would be termlnated, the lmposltlon of the restrlctlve condltlon was dlscrlmlnatory, stemmlng as It dld dlrectly from her absence due to handlcap see Engell V Mount Slnal Hospltal (1989) , 11 C H R R D/68 (Ont Bd Of Inqulry) , Glengarry Industrles/Chromalox v U S W A , Local 6976 (1989) 3 LAC (4 th) 326 (Ont ) , and General Tlre Canada Ltd v U R W , Local 536 (1986) , 26 LAC (3d) 95 (Ont ) Although the respondents submltted that the restrlctlve condltlon amounted to nothlng more than a warnlng, we do not agree It was a condltlon not requlred of or lmposed upon any other employee and It carrled wlth It the sanctlon of lmmedlate termlnatlon for non- compllance Indeed, Ms Black's subsequent fallure to Ilve up to that condltlon led dlrectly to her termlnatlon on January 6, 2986 The letter of termlnatlon, found at tab 6 of the Appeal Book, leaves Ilttle doubt that Ms Black's dlsmlssal stemmed In large measure from her fallure to comply wlth the terms of the restrlctlve condltlon, a condltlon whlch we have found to be dlscrlmlnatory and In vlolatlon of her rlghts under the Code It should be noted that although the second paragraph of the termlnatlon letter beglns wlth the words "we agreed at that tlme (Aprll 29, 1985) that your 22 contlnued employment wlth Galnes", the record lS clear that Ms Black, at that t lme , slmply agreed to do the best she could Her acceptance of these condltlons was to that extent quallfled Regardless, even If It could be sald that she agreed to the restrlctlve condltlon, such agreement would be unenforceable see Ontarlo (Human Rlghts Commlsslon) v Etoblcoke (Borough) , [1982] 1 S C R 202, 132 D L R (3d) 14 Thus, we are satlsfled that Ms Black's termlnatlon was both dlrectly and substantlally Ilnked to the lmposltlon of the restrlctlve condltlon whlch we have found to be dlscrlmlnatory (emphasls added) In OPSEU v Ontarlo (Mlnlstry of Communlty and Soclal Servlces) [1996] o J No 608 (Ont DlV Ct ) , para 4 of the LCA provlded as follows 4 The Grlevor's attendance record wlll be revlewed every SlX months for a perlod of two years followlng the date upon whlch the Grlevor lS re- lnstated to hls employment If In any SlX month perlod the Grlevor falls to meet or surpass the average attendance record of the department, he wlll be subJect to dlsmlssal pursuant to the terms of thls agreement The grlevor falled to meet the average attendance record of the department for the 6 month perlod endlng Aprll 27, 1993 and was termlnated 23 The unlon's argument there was very slmllar to the one made before me 11 The Unlon, on behalf of Mr Blackhall, argues that thls paragraph 4 , In partlcular, lS dlscrlmlnatory In that Mr Blackhall lS requlred, by ltS terms, to perform to a standard not requlred of one-half of the other employees wlthln hls department, the departmental average representlng the mldpolnt wlth half the employees above the average and the other half below It MacFarland J for the maJorlty held 13 We are of the Vlew that paragraph 4 lS dlscrlmlnatory because at the very least, It requlres Mr Blackhall whose absenteelsm was known to be caused, at least In part, by hls handlcap, to meet a standard not requlred of other employees and subJects hlm to a reVlew process when other employees slmllarly sltuated are not 14 The eVldence lS clear that In 1991 when Mr Blackhall was lnltlally termlnated he has been absent a great deal of tlme due to hls obsesslve compulslve dlsorder and the employer was aware of It It lS also clear that In lmposlng paragraph 4 of the settlement agreement on Mr Blackhall they dld so - at least, In part, because of hls absence due to a handlcap wlthln the meanlng of the Code In so dOlng, the employer dlscrlmlnated agalnst Mr Blackhall wlthln the meanlng of the case of Re Ontarlo Human Rlghts Commlsslon v Galns Pet Food (1993) , 16 o R (3d) 290 (On DlV Ct ) The fact that Mr Blackhall agreed to the condltlon does not asslst the employer, as such agreement lS unenforceable Galns Pet Food at p 292 24 In the present case, It lS lmportant to note the requlrement In the LCA whlch the grlevor falled to comply wlth She was requlred to provlde medlcal documentatlon for her absence on September 13, 2005 wlthln 3 calendar days upon returnlng to work She returned to work on September 14th Therefore, he was requlred to provlde the documentatlon no later than September 17th She dld so only on September 28th That delay was the basls of her termlnatlon Thls lS eVldenced from the letter of termlnatlon dated October 3, 2005 whlch In part reads I have consldered all the lnformatlon that lS avallable to me, and have determlned that dlsclpllnary actlon lS warranted I note that you entered lnto Mlnutes of Settlement In February 2004, whereln you agreed, In paragraph 10, to "provlde documentatlon substantlatlng such absence wlthln three (3) calendar days upon your return to work" and were warned, In paragraph 11, that fallure to meet any of the requlrements of the agreement for a two (2 ) year perlod shall result In automatlc termlnatlon Because you falled to provlde the medlcal documentatlon for your September 13, 2005 absence In accordance wlth paragraph 10, your employment lS termlnated based upon your breach of paragraph 11 of the Mlnutes of Settlement On a reVlew of the authorltles reI led upon by the partles, the approprlate approach In cases of thls nature lS as follows 25 (1 ) Flrst, It must be determlned whether the grlevor breached the standard or requlrement In the LCA as alleged by the employer (2 ) Second, It must be determlned whether or not the LCA subJected the grlevor to a standard or requlrement whlch lS hlgher or more onerous than that lmposed on other employees (3 ) Thlrd, If the answer lS In the afflrmatlve, I must determlne whether the hlgher standard or requlrement was lmposed on the grlevor, In whole or In part, because of her dlsablllty If the answer lS "yes", the standard or requlrement lS dlscrlmlnatory and vlolates the Human Rlghts Code (4 ) Flnally, In the event that the standard or requlrement lS found to be dlscrlmlnatory, I must proceed to conslder whether or not that standard or requlrement lS nevertheless valld and enforceable because It constltutes a bona flde occupatlonal requlrement (BFOR) and/or because the requlrement represents the pOlnt of undue hardshlp for the employer 26 The declslon In Re Toronto Dlstrlct School Board (supra) relled upon by the employer lS a good lllustratlon of thls approach At pp 383-384, arbltrator Knopf wrote Therefore, on the narrow questlon of whether there was Just cause to dlscharge, the Last Chance Agreement dlrects In paragraph 8 that any breach of condltlons of the agreement would be deemed to be for Just cause These partles agreed In submlsslons before me that the grlevor has breached condltlons of the Agreement Therefore, on the basls of the agreed facts and glvlng full respect to the voluntarlly executed terms of the Last Chance Agreement, It must be concluded that Just cause for dlscharge has been proven In thls case But thls does not end the matter The Unlon has argued that the Agreement, In ltself, lS a vlolatlon of the Human rlghts Code In that It sets up dlscrlmlnatory condltlons agalnst the grlevor on the basls of her handlcap, that lS, her addlctlon to alcohol The Unlon relles on the reasonlng In the Fantom Technologles Inc case, supra, at pages 246-248 and followlng Counsel reI led on two declslons of the OntarlO Dlvlslonal Court The flrst was Re Ontarlo Human rlghts CommlSSlon and Galnes Pet Foods Corp (1994) , 16 o R (3d) 290 In the Galnes case, the complalnant had a restrlctlve condltlon lmposed on her when she returned to work after a slx-month absence due to a serlOUS lllness The condltlon was that she would be "expected to malntaln a level of attendance equal to or better than the average of the hourly rated employees In the plant" [at p 291 ] Fallure to meet that lnstructlon would "result In the termlnatlon of [her] employment" The court noted that lrrespectlve of the complalnant's hlstory of absenteelsm, whlch was extenslve, the prlmary cause of the restrlctlve condltlon arose dlrectly from her dlsablllty As It transplred, the complalnant falled to Ilve up to the condltlon and was termlnated The Court held that even If the complalnant has accepted the condltlon, "such 27 agreement would be unenforceable", at p 292 In so holdlng, the Court relled upon the declslon of the Supreme Court of Canada In Ontarlo (Human Rlghts Commlsslon) v Etoblcoke (Borough) , [1982] 1 S C R 202 In the Etoblcoke case, the Supreme Court had before It a mandatory retlrement clause In a collectlve agreement It was argued that as the partles had negotlated the condltlon and that It was based, In part, on the demands of the partlcular occupatlon, It ought to be respected as a bargaln between the partles Mr Justlce McIntyre, for the Court, held that to glve effect to that argument "would be to permlt the partles to contract out of the provlslons of The Ontarlo Human Rlghts Code It lS clear from the authorltles, both In Canada and In England, that partles are not competent to contract themselves out of the provlslons of such enactments and that contracts havlng such effect are vOld, as contrary to publlc pollcy" [at p 213 ] The Dlvlslonal Court In Galnes [Ontarlo (Human Rlghts Commlsslon v Galnes Pet Foods Corp (1993) , 50 C C E L 315, 28 C H H R D/256, 94 C L L C 17, 004, sub nom Black v Galnes Pet Foods Corp , 16 o R (3d) 290, 44 A C W S (3d) 758 ] held that the complalnant's termlnatlon was both "dlrectly and substantlally Ilnked to the lmposltlon of the restrlctlve condltlon whlch we have found to be dlscrlmlnatory" [at p 292 ] and therefore unenforceable The Court held that the complalnant's rlghts under the Code were vlolated, because In termlnatlng her the company took lnto account her slx-month absence due to her cancer The Court also noted the complalnant's lengthy absenteelsm record and held that "the law lS clear that the prohlblted ground of dlscrlmlnatlon need not be the only reason for the actlon taken, as long as It forms one of the reasons", at p 293 The Galnes declslon was followed by another panel of the OntarlO Dlvlslonal Court In o P S E U V OntarlO (Mlnlstry of Communlty and Soclal SerVlces ) (unreported, February 21, 1996, Court Flle No 544/95) In that case the grlevor suffered from an obsesslve compulslve dlsorder, whlch was a handlcap 28 wlthln the meanlng of the Code The grlevor had been dlsmlssed In 1991 because of absenteelsm related to hls condltlon and was relnstated on terms Paragraph 4 of the Settlement provlded that If he falled to meet or surpass the average attendance record of the department In any slx-month perlod, he would be subJect to dlsmlssal In March, 1993, he falled to meet the average and was dlsmlssed The holdlng of the Dlvlslonal Court, and It lS partlcularly relevant to thls case, was that the grlevor was requlred to meet a standard not requlred of other employees, and subJected hlm to a reVlew process when other employees slmllarly sltuated were not That constltuted dlscrlmlnatlon on the basls of dlsablllty contrary to the Code And, as In Galnes, the Court held that the fact that the grlevor agreed to the condltlon does not asslst the employer, "as such agreement lS unenforceable" Arbltrator Knopf concluded as follows I am of the oplnlon that the declslon In Galnes, supra, and In o P S E U v OntarlO (Mlnlstry of Communlty and Soclal Servlces), supra, declde the lssue In thls case That lS, a condltlon was lmposed upon Comanluk because of hls handlcap, whlch subJected hlm to a reVlew process partlcular to hlm, and not lmposed upon hls fellow employees And the fact that he agreed to It, and was advlsed by hls unlon In dOlng so, does not render the Agreement any less unenforceable, see the declslon of the Supreme Court of Canada In Etoblcoke, supra The passage In Labatt's, supra, does not state the law In Ontarlo, and appears to be contrary to the rullng In Etoblcoke, supra Flnally, counsel for the Company argued that paragraph 5 ousted entlrely the Jurlsdlctlon of an arbltrator to hear thls case That lS, If there was a breach of the Code, then the proper place for Comanluk to complaln lS elther In the OntarlO Courts or before the Ontarlo Human Rlghts Commlsslon He could not come to arbltratlon because he agreed, In paragraph 5 of the Agreement that he would not I am of the oplnlon that the Agreement not to grleve or to resort to the arbltratlon process, lS not a provlslon that lS severable from the rest of paragraph 5 Indeed, It lS an essentlal part of It, and the whole lS vlolatlve of 29 the Code and unenforceable for the reasons set out above The prellmlnary obJectlon lS dlsmlssed and It lS ordered that Comanluk be returned to work upon recelpt of thls Award Thls lS not a case for compensatlon (emphasls added) Havlng concluded that the requlrement of the LCA breached by the grlevor was dlscrlmlnatory, however, the arbltrator stated that such flndlng was not the "end of the matter" She went on to conslder the employer's argument that the LCA term In questlon constltuted an accommodatlon to the pOlnt of undue hardshlp She wrote at pp 387-388 Agaln, the recltals In the Agreement set out a background of work performance problems and alcohol abuse In the workplace Thls led the partles to the mutual agreement that the sltuatlon could not contlnue Thls lS understandable In any workplace, but partlcularly so In the context of a publlc educatlonal lnstltutlon The eVldence dlscloses that by November 1997 there was a recognltlon that the grlevor's presence at the work slte could not be contlnued and should not be resumed unless and untll abstlnence and other condltlons could be malntalned Thls was a "reasonable" response to a dlfflcult sltuatlon Further, the partles recognlzed that thls response was taken after "every reasonable effort to accommodate" the grlevor had already been provlded (See paragraph (lV) of the Agreement ) To ask that the reasonable terms and condltlons of the Agreement be set aSlde after havlng already made "every reasonable effort to accommodate", the grlevor would be puttlng the Employer In a posltlon of undue hardshlp It would negate the efforts made to date and It would render meanlngless to thls grlevor and all others In her sltuatlon the lmportance of a last chance agreement 30 Therefore, I must conclude that the eVldence establlshes that the Employer had accommodated thls grlevor up to the pOlnt of undue hardshlp at the tlme the Agreement was slgned Further, at the tlme of termlnatlon the Agreement can be seen as an addltlonal accommodatlon To expect any further accommodatlon would be puttlng thls employer to undue hardshlp The test lS not whether anythlng else could have been done There lS always somethlng more that could be done for a person In dlstress There lS always the hope that one more try or one more treatment wlll turn a sltuatlon around But the Human Rlghts Code does not demand that dlsabled employees be glven every concelvable opportunlty It demands that the employee be accommodated to the pOlnt of undue hardshlp by the employer The facts here establlsh that the Employer has met the burden of provlng that level of accommodatlon (emphasls added) It lS apparent that In Re Toronto Dlstrlct School Board the LCA provlslon was upheld, although found to be dlscrlmlnatory and contrary to the Code, only because on the partlcular eVldence the Board concluded that the employer could not make any further accommodatlon, wlthout sufferlng undue hardshlp, wlth regard the grlevor's lnablllty to attend work to an acceptable level The same lS true of the declslon In Re Labatt Brewerles Ontarlo, (2002 ) 107 LAC (14 th) 126 (Barrett) There the grlevor had a heroln addlctlon In a LCA all partles had 31 agreed that "the company has fulfllled ltS duty of reasonable accommodatlon under the Human Rlghts Code and the unlon shall not argue for any further accommodatlon of Slmon by the Company" The unlon's posltlon lS set out at p 138 It lS the posltlon of the Unlon that several provlslons of the last chance agreement dlscrlmlnate agalnst the grlevor due to hls handlcap He has restrlctlons placed on hlm that are not lmposed on others Paragraph 4 provldes that he cannot be under the lnfluence of drugs whlle not at work The testlng provlslon lS not lmposed on other employees, and testlng can measure drug use outslde of worklng hours Paragraph 7 requlres that he malntaln the plant average absenteelsm rate, whlle paragraph 9 takes away hls rlght to have an arbltrator exerClse her Jurlsdlctlon to substltute a lesser penalty than dlscharge for a breach In the LCA, the grlevor had agreed to lmmedlately co- operate wlth a company request to provlde a blood or urlne sample when requested, for testlng for drugs He was dlscharged because he refused to provlde a urlne sample when requested At pp 142-143 the arbltrator wrote The provlslon of the last chance agreement that Mr Bartolo vlolated was one that was reasonable and bona flde In the clrcumstances, and not dlscrlmlnatory In the llght of hls acknowledged drug addlctlon and the obvlous requlrement that people be drug-free at work I do not thlnk It lS necessary for me to examlne every clause In the last chance agreement for slgns of 32 dlscrlmlnatlon arlslng out of handlcap The one that was vlolated was reasonable and bona flde At p 143 she concluded that the employer had accommodated the grlevor to the pOlnt of undue hardshlp I flnd that the Company had accommodated the grlevor's handlcap up to the pOlnt of undue hardshlp at the tlme It termlnated hlm It put up wlth a lengthy dlsclpllne and absenteelsm hlstory, It accommodated two four-month and one seven-month leaves of absence for rehabllltatlon programs, the last two of whlch were pald for by the Company On the last two occaSlons, hls return to work hours were accommodated to meet hls program requlrements wlthout loss of pay And, of course, there lS the very lmportant acknowledgement that the last accommodatlon was sufflclent (emphasls added) Turnlng to the other arbltratlon declslons relled upon by the employer, In Re Espanola (supra), It was found that the grlevor was not subJected to a hlgher standard, and further that he had been accommodated to the pOlnt of undue hardshlp In each of the other declslons reI led upon by the employer, the declslon turned on the fact that the requlrement lmposed on the grlevor was a bona flde occupatlonal requlrement and/or that the employer had accommodated the grlevor to the pOlnt of undue hardshlp 33 Turnlng to the lnstant case, the flrst of the four steps I have set out above lS easy to apply Slnce the partles agree that the LCA was breached by the grlevor She was requlred to provlde documentatlon relatlng to an absence wlthln 3 days of her return to work She falled to meet the 3 day tlmellne As for the second step, employer counsel argued that the 3 day tlme Ilmlt was not a requlrement pecullar to the grlevor Reference was made to artlcle 12 4 of the collectlve agreement whlch lS set out In the agreed facts (p 5 supra) I agree wlth unlon counsel that the LCA requlrement In questlon lS very dlfferent and more onerous than that contalned In artlcle 12 4 That artlcle lS about entltlement to leave wlth pay for absences caused by slckness or lnJury It does not lmpact on the lssue of Just cause for dlsclpllne and dlscharge In any event, for absences of less than 5 days, It glves the employer a dlscretlon to requlre a medlcal certlflcate It does not requlre a certlflcate In all cases of absence due to slckness, as was the case In the grlevor's LCA Flnally, 34 artlcle 12 4, unllke the LCA, does not stlpulate any tlme deadllne for productlon of a medlcal certlflcate Therefore I conclude that the LCA lmposed a hlgher standard on the grlevor Movlng on to the next step In the analysls, employer counsel pOlnted out that whlle the grlevor's absence on the day In questlon was due to a legltlmate lllness, It had nothlng to do wlth her dlsablllty, l e her alcohol addlctlon Her fallure to produce medlcal documentatlon wlth 3 days was not related to her dlsablllty elther Thus she submltted, that the LCA requlrement the grlevor breached was not Ilnked to the dlsablllty and therefore could not held to be contrary to the Human Rlghts Code In my Vlew, the fact that the breach ltself was not related to the dlsablllty lS lrrelevant That lS not the test The test lS whether or not the hlgher standard was lmposed on the grlevor because of her dlsablllty See the Court declslons In Re Galnes Pet Foods and Re OPSEU (supra) To lllustrate, assume that a LCA requlres that X be not absent more than 5 days In any calendar month, a condltlon not requlred of other employees The requlrement 35 was lmposed on X In an attempt to control her absenteelsm due to her dlsablllty l e a drug addlctlon X exceeds the 5 day Ilmlt followlng an auto accldent Even though the breach was caused by an absence unrelated to X's dlsablllty, It would nevertheless be dlscrlmlnatory because X would not have been subJected to that 5 day tlme Ilmlt, but for her dlsablllty The same lS true In the present case But for her addlctlon, the grlevor would not have been subJect to the requlrement she breached The employer dld not argue otherwlse That lS the Ilnk that renders It dlscrlmlnatory on the grounds of dlsablllty Thus In Galnes Pet Foods (supra) , the Court reasoned " It lS apparent that lrrespectlve of Ms Black's prlor hlstory of absenteelsm, the proxlmate If not prlmary cause of the restrlctlve condltlon In the Aprll 29 letter arose dlrectly from Ms Black's absence due to her dlsablllty" In OPSEU v Ontarlo, the Court stated "We are of the Vlew that paragraph 4 lS dlscrlmlnatory because at the very least, It requlres Mr Blackhall whose absenteelsm was known to be caused, at least In part, by hls handlcap, to meet a standard not requlred of other employees and subJects hlm to a reVlew process when other employees slmllarly sltuated are not" The Court observed "It lS also clear that In 36 lmposlng paragraph 4 of the settlement agreement on Mr Blackhall, they dld so - at least In part, because of hls absence due to a handlcap wlthln the meanlng of the Code In so dOlng, the employer dlscrlmlnated agalnst Mr Blackhall wlthln the meanlng of the case of Re Ontarlo Human Rlghts Commlsslon v Galns Pet Food, (1993) 16 o R (3d) 290 (Ont DlV Ct)" Based on the legal prlnclples revlewed ab ove , I conclude that paragraph 10 of the LCA lS dlscrlmlnatory on the basls of the grlevor's dlsablllty and offends the Code The flnal lssue lS whether paragraph 10, although dlscrlmlnatory, lS nevertheless enforceable on the grounds that the requlrement lmposed on the grlevor represented the pOlnt of undue hardshlp on the employer's duty to accommodate, or that the requlrement constltuted a BFOR As noted, such a result was achleved In cases such as Toronto Dlstrlct School Board (supra) on the grounds that the employer had reached the pOlnt of undue hardshlp In accommodatlng the grlevor's dlsablllty In the present case the employer dld not make an argument of undue hardshlp Thls lS not surprlslng because on the partlcular 37 facts such an argument could not have succeeded If the breach on the part of the grlevor had been a fallure to meet the attendance rate lmposed on her In paragraph 10, dependlng on the totallty of the eVldence, an argument could have been made that the ablllty to meet that rate of attendance was a reasonable requlrement, and that there was no further accommodatlon the employer can make to help the grlevor achleve that attendance rate Slmllarly, If the requlrement breached caused the employer serlOUS operatlonal problems, (e g fallure to glve tlmely notlce of an absence as In Re York Reglon Dlstrlct School Board) (supra) , an undue hardshlp argument may be made The breach by the grlevor was not of that nature The grlevor dld produce the requlred medlcal substantlatlon Her breach was, she produced It late There lS slmply no eVldence that that delay caused the employer any hardshlp S 17 (1) and (2 ) of the Human Rlghts Code provldes s 17 (1) A rlght of a person under thls Act lS not lnfrlnged for the reason only that the person lS lncapable of performlng or fulfllllng the essentlal dutles or requlrements attendlng the exerClse of the rlght because of handlcap (2 ) The Commlsslon, a board of lnqulry or a court shall not flnd a person lncapable unless It lS satlsfled that the needs of the person cannot be accommodated wlthout undue hardshlp on the person responslble for accommodatlng those needs, conslderlng the cost, outslde 38 sources of fundlng, If any, and health and safety requlrements, If any The fallure to produce medlcal documentatlon wlthln 3 days has no lmpact on the grlevor's ablllty to perform the essentlal dutles of her Job Indeed, there lS no suggestlon that the grlevor was deflclent In relatlon to Job performance, by way of her ablllty to regularly attend work or In any other way At least there lS no suggestlon to the contrary It lS not concelvable (and It was not argued) that the grlevor's fallure to adhere to the 3 day tlme Ilmlt In produclng medlcal substantlatlon for her absence on September 13, 2004 caused the employer any hardshlp, let alone "undue hardshlp" It follows that unllke In the cases reI led upon by the employer, In the present case there lS no legal basls upon whlch the requlrement lmposed on the grlevor, whlch I have found to be dlscrlmlnatory, can nevertheless be found to be enforceable Therefore the grlevor's dlscharge cannot stand Slnce It was based on a provlslon In the LCA whlch was contrary to the Human Rlghts Code That provlslon lS vOld and unenforceable 39 Employer counsel submltted that In the event I flnd to that effect, I ought nevertheless lmpose an approprlate degree of dlsclpllne on the grlevor for her breach In the Clrcumstances of thls case, I have no basls for dOlng that Slnce the employer lS not entltled to rely on the LCA provlslon, to Justlfy any dlsclpllne, the employer must establlsh Just cause The eVldence before me does not do that I have no eVldence that the employer requlred, lndependent of the LCA, that the grlevor produce medlcal substantlatlon by exerclslng ltS dlscretlon under artlcle 12 4 Even If there was eVldence that the grlevor was under such a dlrectlon, from the employer, lndependent of the LCA, to produce medlcal substantlatlon for her absence on September 13 th , 2005 wlthln 3 days of her return to work, the only facts before me are to the effect that the grlevor represented to the employer that she attempted to get an appolntment wlth her doctor but could not get one untll September 23, 2005 Employer counsel submltted that the grlevor could have gone to the emergency dept In a hospltal or to some other medlcal cllnlc, rather than walt for her own physlclan However, that lssue was not Iltlgated and I have no eVldence In thls regard at all Were there other optlons avallable to the grlevor and If 40 so, dld she have a reasonable explanatlon for not taklng those optlons There lS slmply no eVldence before me upon whlch I can flnd that the grlevor was culpable That lS a matter not addressed by the partles, except by way of employer counsel's submlsslon In the cases where a dlsabled employee's dlscharge lS upheld based on a LCA, arbltrators often express thelr personal sympathy for the grlevor Arbltrators recognlze that the employee lS denled hls Ilvellhood because of hls dlsablllty, but that It lS a necessary result because the employer cannot, under the law, be requlred to undertake any more hardshlp In the present case the reverse lS true The sympathy goes to the employer It had entered lnto the LCA In good falth wlth a genulne deslre to asslst the grlevor wlth regard to her dlsablllty As employer counsel pOlnted out, the grlevor beneflted from that agreement No doubt, It would be very frustratlng that It flnds ltself unable to rely on the deal struck However, desplte the good falth and the lack of fault, the Human Rlghts Code as lnterpreted by the Courts must prevall I have no dlscretlon but to enforce the law 41 It follows from the foregolng that the grlevance must succeed The employer lS dlrected to relnstate the grlevor forthwlth and to compensate her for all losses that resul ted from her termlnatlon I remaln selzed In the event the partles have any dlspute In lmplementlng thls declslon :t Dated thls 1 day of February, 2006 at Toronto, Ontarlo ~~ . ..... ... . . ,. . .. 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