Attendance Management and the Law – Case Study II The Supreme Court of Canada upheld grievance arbitration decisions in two court cases endorsing the right of management to terminate union employees who cannot fulfill their basic employment contract of work for compensation.
Essentially the Court ruled an employer must help a disabled workers to do the essential duties of the job, not change the job to fit the functional abilities of the employee. This duty is found in Canada’s Constitution and the Human Rights Codes of each of Canada’s Provinces and Territories. In addition, regular attendance at work is an essential duty under contract employment. At arbitration it was found neither employee was, for the foreseeable future, able to attend work regularly. They were chronic absentees. The principles apply whether OCC or non-OCC injury or illness.
- The Hydro-Quebec Case (SCC) (2008)The Facts 1. Unionized employee 2. Terminated – chronic absenteeism (960 days over approximately 8 years) 3. Variety of physical and mental medical problems – personality disorder 4. Accommodated by the employer over the years 5. At arbitration, medical evidence-prognosis doubtful regarding regular attendance at work.
Hydro-Quebec – Deschamps for the Unanimous Court Balancing Interests “. . .the Court must consider the interaction between the employer’s duty to accommodate a sick employee and the employee’s duty to do his or her work.” (para.
1) The Issue The interpretation and application of the undue hardship standard. The Standard In cases where an employer seeks to apply a standard, the standard must be applied “with common sense and flexibility.” (para.12)
Accommodation
1. “. . . the goal of accommodation is to ensure that an employee who is able to work can do so . . . The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.” (para. 14)
2. “The test is not whether it is impossible for an employer to accommodate the employee’s characteristics.” (para. 15)
3. “The employer does not have a duty to change working conditions in a fundamental way.” (para. 15) 4. The employer “. . . does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” (para. 15)
Accommodation – Burden of Proof “In a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee . . . the employee will be unable to resume his or her work in the reasonably foreseeable future, he employer will have discharged its burden of proof and established undue hardship.” (para. 17)
Accommodation – Reasons for Dismissal 1. “It is less the employee’s handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship.” (para. 18) 2. “The employer’s duty to accommodate ends when the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” (para. 19) Undue Hardship – The Evidence
In the case, where 1. “the employee has been absent in the past due to illness, . . .
2. “. . . the employer has accommodated the employee for several years and . . .
3. “. . . the doctors are not optimistic regarding the possibility of improved attendance, . . .
4. “. . . neither the employer nor the employee may disregard the past in assessing undue hardship.” (para. 21)
Hydro-Quebec – Attendance Management Lessons 1. As in McGill, the assessment of the duty of reasonable accommodation begins with the fundamental employment contract – work for remuneration.
2. The purpose of the duty to accommodate is to arrange the employee’s workplace or duties to enable the employee to perform the essential duties of the job.
3. Establishing standards to monitor employee attendance is a responsibility of the employer for the management of its workforce. (workersxzcompxzkit)
4. Workplace standards must be reasonable and must be applied with common sense and flexibility. 5. “The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic functions associated with the employment relationship for the foreseeable future.” (para. 19)
Attendance Management Programs – Recent Challenges 1. City of London arbitration – July 27, 2009 2. City of Hamilton arbitration – August 6, 2009 Author: Attorney David Brady can be reached at 416-864-7310 or david-brady@hicksmorley.com and http://www.hicksmorley.com
“FRAUD PREVENTION PODCAST: LISTEN TO FREE AUDIO or VIDEO http://www.workerscompkit.com/gallagher/mp3 Extremely informative 50 minute PowerPoint Presentation
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers’ comp issues. ©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
