A Nova Scotia employer failed to properly investigate accommodation options before it terminated an employee due to excessive but innocent absenteeism, an arbitrator has ruled.
The employee worked for the Cape Breton Regional Municipality in Nova Scotia, doing payroll, accounts payable and rentals at an ice rink.
For the first few years of employment at the municipality, she had no attendance issues at work. Her hours were somewhat flexible in that if she missed time, she could make it up by working weekends or overtime.
However, in 2004, the employee was diagnosed with cancer, which made it necessary for her to take time off work.
The illness required extensive treatment that took more than one year to complete. There were extreme side-effects that made the employee sick, and the drugs caused her to suffer symptoms of depression.
The employee received long-term disability (LTD) benefits for nearly two years while she was treated for the illness.
When the employee returned to work, she discovered her department had moved to a different arena with a different workplace regime that didn’t have the flexibility of her previous workplace.
Since the employee hadn’t fully recovered from her medical ordeal, she was frequently exhausted and felt stressed in the new workplace. After several months back on the job, she began to suffer from depression.
Medication, side-effects from illness caused depression
In 2006, the employee suffered from another serious illness that required surgery.
After the surgery, her depression worsened.
In September 2006, a physician in the municipality’s occupational health services division — who was responsible for determining the fitness of employees to return to work — noted that the employee was depressed, had decreased energy, a lack of concentration and decreased interest as a result of her medication and treatment.
He recognized that she had a “major depressive disorder” and said she should continue taking medication while seeing a psychologist, with the aim of returning her to work.
In March 2007, the municipality’s physician and the psychologist felt it was in the employee’s best interest to return to work on March 19, but in an “ease back” situation where she would start with part-time duties and gradually work her way back to full-time.
The municipality was unaware of the nature of the employee’s depression and followed the medical directions that related only to the employee’s ability to perform in the workplace. There were no further instructions regarding limitations or the need for accommodation.
The employee resumed full-time duties in June 2007.
Over the next four years, the employee continued to work full-time but often arrived late. In many cases, she called in to notify the municipality she would be late for various reasons — such as a flat tire or a toothache.
The manager of the rink kept a record of the absences and in none of them did the worker indicate the absence was due to fatigue or depression.
Management at the municipality was aware the employee was dealing with serious health issues. It accommodated these absences based on medical information it received pertaining to the employee’s needs, without discussing the specific nature of the employee’s illness.
Concerns about absenteeism
The manager spoke with the employee on several occasions about her absenteeism and stressed to her that it made things difficult when she wasn’t at work on time.
Whenever it happened, other payroll staff had to fill in and cover her duties, which caused “considerable hardship” in the workplace.
Because the absences were sporadic and came with little advance notice, the municipality couldn’t simply replace the employee as it would if she were off for some time.
As a result, work would often pile up and not get taken care of in a timely manner, and other workers became frustrated.
Both the manager and union vice-president told the employee she needed to be punctual to avoid difficulties in the workplace.
The employee replied that she thought she could handle things and she wouldn’t miss time in the future.
The employee did mention her issues with depression but reiterated that she could handle it.
The employee missed a total of 41 days of work in 2008 and a total of 29 the following year, along with four unpaid leave days and many vacation days taken in lieu of sick days.
In 2010, she took 10 unpaid leave days and more than 20 vacation days taken in lieu of sick days.
In addition, she missed more than three months with a workers’ compensation claim from a work-related accident that required physiotherapy.
By comparison, the average sick time taken by Cape Breton employees was six days per year.
HR, employee meet to discuss problems
In March 2010, the director of HR and the employee met to discuss her absenteeism.
It was made clear to the employee the municipality was aware she was dealing with a serious illness, but her “continued excessive absence” could lead to termination.
The municipality also requested medical approval showing she was fit to work a regular work schedule.
If not, and if her health problems were serious enough that she was unable to work regularly, then the municipality indicated it would help the employee apply for LTD benefits.
The employee continued to provide assurances that she would come to work on time, but she still regularly did not.
The municipality finally decided the difficulties the absences were causing were too much and it could no longer accommodate the employee as a full-time worker. It terminated her employment for excessive absenteeism on Jan. 14, 2011.
Shortly thereafter, the union filed a grievance requesting reinstatement.
Depression ‘serious and significant’: Arbitrator
The arbitrator found the employee’s depression was “of a serious and significant nature” and that was a main contributor to her inability to come to work on time many mornings.
This depression qualified as a disability that required employer accommodation to the point of undue hardship, said the arbitrator, Peter MacKeigan.
The employee’s statements that she would be on time for work after being warned were understandable since she was worried about her job and intended to try harder to be on time, said the arbitrator.
However, the employee’s failure to improve and continued excessive absenteeism “had a significant and serious effect on the workplace and other employees,” said MacKeigan.
Employer didn’t know extent of health issues
While its workplace and other workers were affected by the employee’s absenteeism, the municipality had no specific information on the employee’s medical condition and the impact of her depression on her absenteeism, since it had only been given information relevant to her fitness to work — common practice in such circumstances.
As such, the municipality understood the employee’s absenteeism was related to her medical problems and considered it “blameless,” but it considered the excessive absenteeism a pattern that was unlikely to improve in the future.
Therefore, the Nova Scotia municipality felt it had reached the point of undue hardship and couldn’t employ the employee as a full-time worker.
The arbitrator noted a 1995 Supreme Court of Canada decision — Quebec Cartier — that stipulated a dismissal should be upheld when the employer has just cause based on the information it has at the time of dismissal.
Subsequent information — such as the details of the employee’s depression and its contribution to her absenteeism — that came out after the dismissal isn’t relevant to the determination of cause.
Dismissal not the answer
However, while the municipality wasn’t aware of the extent of the employee’s health issues and therefore was unable to fully accommodate her, dismissal wasn’t the right course of action, found MacKeigan.
“I do not see in the (Nova Scotia human rights legislation) as intending to take away any rights which the (employee) may have with respect to an accommodation simply because that information, through no fault of the employer, the union or the (employee), was not made known or available to the employer prior to termination,” said the arbitrator in his decision.
“Had this information been known to the employer at the time of termination, then there is no question the information as to the disability would have required to have been considered by the employer under the duty to accommodate.”
The employee’s disability and its effect on her absenteeism wasn’t accommodated by the employer, said MacKeigan, but the municipality also didn’t have the opportunity to investigate its duty to accommodate since it didn’t have all the medical information.
The municipality was ordered to reinstate the employee, but only conditionally pending a review of its ability to accommodate her.
For more information see:
• Cape Breton (Regional Municipality) and CUPE, Local 993 (B.(A.)), Re, 2013 CarswellNS 963 (N.S. Arb. Bd.).
• M.U.A., local 6869 c. Cie minière Québec Cartier, 1995 CarswellQue 24 (S.C.C.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at firstname.lastname@example.org or visit www.employmentlawtoday.com for more information.
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