Telecommunications Workers Union, Petitioner and TELUS Advanced Communications, a Division of TELUS Communications Inc.; TELUS Services Inc. and TELUS Advanced Services Inc.; TELUS Communications, a Division of Telus Communications inc. and Telus Communications (B.C.) Inc.; TELUS Management Services, a Division of TELUS Services Inc. Telecome Leasing Canada (TLC) Limited; and ISM Information Systems Management (B.C.) Corporation; (hereinafter referred to as “TELUS” or “the Company”); TELE-MOBILE Company/Societe TELE-MOBILE and TM Mobile Inc.; (hereinafter referred to as “TELUS Mobility”), Respondent and IB S. Petersen, Respondent
- Smith J.
Heard: October 21, 2011
Judgment: December 30, 2011
Docket: Vancouver S112553
2011 BCSC 1761
Counsel: L.M. Lyster, for Petitioner
- L. Richards, J. A. Cowan, for Respondent
- Smith J.:
1 The petitioner Telecommunication Workers Union applies to set aside the decision of a labour arbitrator who upheld the dismissal of an employee for excessive absenteeism.
2 The respondent employer (”TELUS”) operates a call centre in Prince George, where Bonita Palmer (the “grievor”) was employed as an operator for 25 years. She was dismissed on October 8, 2008, with a letter stating that she had been absent for “an unacceptably high number of shifts” and was therefore not capable of meeting her employment obligations.
3 A grievance was filed pursuant to the collective agreement between TELUS and the union. TELUS is a federally regulated enterprise subject to the Canada Labour Code. Pursuant to provisions of the code, the minister of labour appointed the arbitrator to hear and determine the grievance.
4 The union argues that, in dismissing the grievance, the arbitrator not only erred in finding that the employer had cause to dismiss the grievor but also erred in his analysis of the employer’s duty under human rights legislation to accommodate the grievor’s disability.
The Arbitrator’s Findings
5 The arbitrator heard the matter over a total of 11 hearing days and dismissed the grievance in an 84-page award dated January 24, 2011. It is not the function of the court, on judicial review, to recite and weigh all of the evidence that was before the arbitrator. What follows is a brief summary of what I consider to be his essential findings of fact.
6 TELUS operates a number of call centres at which operators provide services such as directory assistance, collect calls and account adjustment. Operator Services in Prince George, where the grievor worked, is one such centre. Incoming customer calls are routed by computer to the next available operator, regardless of location. The computer system also measures and records operator performance, including the time that operators are “logged on” and ready to accept calls, and operators are expected to meet specific performance standards.
7 The grievor suffered from a number of health problems, including chronic low-grade depression with major depressive episodes. These conditions, along with other illnesses, resulted in a considerable number of absences from work over many years. These absences were summarized by the arbitrator at paragraph 130 of the award:
She was absent more than 80 days in 1994, about 20 in 1995, more than 150 in 1996. A “Work Force Impact” document from September 2001, shows her absence rates between 1997 and 2001 in contrast to the corporation average (in brackets): 1997, 34.11% [3.69%], 1998, 52.88% [3.38%], 1999, 10.42% [4.10%], 2000, 16.56% [4.26%], and 2001, 20.94% [4.33%]. For 2002, the absence rates were 6.62% [4.39%], 2003, 15.05% [4.30%], 2004, 22.66% [4.26%], 2005, 43.12% [4.53%]. In 2000, she was absent on 40.65 days on 25 occasion; 2001, 39.73 days, 29 occasions; 2002, 12.86 days, 9 occasions; 2003, 26.12 days, 23 occasions; 2004, 49.00 days, 26 occasions; 2005, 17.73 days, 8 occasions; 2006 129.62 days, 15 occasions; 2007, 5.00 days, 3 occasions; and finally, in 2008, 32.88 days, 14 occasions. In 2005, BP was off work for five months, yet she was still absent for 17.73 days on 8 occasions. The 2008 prognosis letter indicated that the number of shifts missed represented 20% absenteeism in 2004, 23% in 2005, 49% in 2006, and 32% in 2007 compared to a team average of 7-8% absenteeism.
8 Although there were some inconsistencies in the evidence about the precise number of days missed in some years, the arbitrator found that the grievor, “in both relative and absolute terms, had a considerable and significant absenteeism record” dating back to 1994.
9 When Brenda Laviolette became operator services manager in Prince George in 2001, she reviewed employee files and told the grievor that her absenteeism rate needed to improve.
10 Operators working in the call centre received annual performance evaluations until 2004 and semi-annual evaluations after that. The subject of absenteeism was regularly raised in the grievor’s evaluations, beginning in 2001. Between October 24, 2002 and June 5, 2006, she received seven formal letters expressing concern about her absenteeism. The last four such letters specifically warned her of possible termination if she was unable to attend work on a regular and consistent basis. In addition to the formal letters, there were also a number of discussions in which Ms. Laviolette raised the attendance issue with her.
11 Throughout this period, the grievor frequently provided information from her doctor in the form of Practitioner Assessment Forms (PAFs). These documents included confirmation that she suffered from depression and anxiety and recommended that she be permitted to get up and move about as needed to reduce stress. In 2004, TELUS agreed to provide these “micro breaks” for five minutes in each hour.
12 The arbitrator found that by mid-2005, the grievor understood that she was “on her last leg” and was close to termination. The performance review for the first half of 2005 showed an absenteeism rate of 39.1 per cent.
13 The grievor was off work completely from late July, 2006 to October 2007. Upon her return, she agreed to a return to work plan that, in addition to the five minute breaks every hour, provided her with a consistent five-day work week (as opposed to the normal schedule under which operators worked 8 or 9 consecutive days, followed by three or four days off).
14 On May 26, 2008, Ms. Laviolette gave the grievor a “prognosis letter” to pass on to her doctor. That letter itemized the number of days she had missed for each year beginning with 2000, including 18 days to that point in 2008, and asked that the doctor provide an opinion on her current medical limitations, details of any requirements for additional breaks and an opinion as to whether she was “capable of attending work regularly in the foreseeable future or is a similar attendance pattern likely to persist?” The arbitrator found that this letter, unlike the PAFs that had previously been provided, “specifically sought to address the medical information required in the context of [her] absences and her job description.”
15 The prognosis letter was never provided although a further PAF dated June 20, 2008 repeated the previous diagnosis and recommended continuation of “current accommodations.” The grievor said she had received advice from the union not to provide the prognosis letter.
16 The grievor’s employment was terminated on October 8, 2008. A letter signed by Ms. Laviolette again set out the number of days missed since 2000, including a total for 2008 that had by then reached 32 days. The letter stated that although the grievor had received many warnings that her job was in jeopardy:
…your record of attendance continues to demonstrate that you are unable to fulfill the commitment of a regular work schedule.
As a result, it has been determined you are not capable of meeting your employment obligations with TELUS.
17 The arbitrator found that, although there were year to year variations, the grievor’s overall history of absenteeism was “both lengthy and substantial, that it was “excessive” and “significantly outside the range of reasonable expectation.” He also found that, as of the date of termination, she was still not able to attend work on a regular basis. Although he found that the grievor suffered from a disability and her dismissal was therefore prima facie discriminatory, the employer had met the onus of showing it had taken all reasonable steps to accommodate her disability.
Standard of Review — Cause for Dismissal
18 Prevailing case law clearly establishes that arbitral awards under a collective agreement are subject, as a general rule, to review on a standard of reasonableness: M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59 (S.C.C.).
19 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), at paras.47 and 49, the Supreme Court of Canada referred to the reasonableness standard as a “deferential” one recognizing the fact that:
[47]…certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[49] …In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
20 The union concedes that the reasonableness standard applies to most aspects of the decision at issue, including issues arising out of the collective agreement and cause for dismissal.
21 In reviewing a decision on the reasonableness standard, it is not the task of the court to ensure that the arbitrator explicitly dealt with every factual issue that arose or every point raised in the parties’ submissions. The Supreme Court of Canada has very recently stated in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), at paras 16-18:
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, explained in reasons upheld by this Court (2011 SCC 57) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (para. 163).
Cause for Dismissal
22 The Union argues that the arbitrator failed to consider the ultimate issue of whether the Employer had established just cause for the grievor’s termination and failed to make an explicit finding on that point. The arbitrator considered arbitral jurisprudence that establishes the right of an employer, in certain circumstances, to terminate an employee for absenteeism even if the absenteeism does not result from any blameworthy conduct. The parties agree that an employee can be dismissed for such “non-culpable” or “innocent” absenteeism only if the employer establishes (a) undue absenteeism in the employee’s past record and (b) that the employee is incapable of regular attendance in the future: U.A.W. v. Massey-Ferguson Ltd. (1969), 20 L.A.C. 370 (Ont. Arb.).
23 The arbitrator considered the evidence in relation to that test, making clear that the onus was on the employer to justify dismissal. He clearly decided the employer had just cause for dismissal on the basis of the employee’s innocent absenteeism — the only cause that was alleged or considered. In my view, there is no ambiguity or uncertainty about that finding or the basis for it.
24 The arbitrator reviewed the grievor’s attendance record over a 14 year period, including fluctuations in the amount of absenteeism from year to year, and referred to evidence comparing her attendance to a corporate average for many of those years. He concluded at para. 140:
On a “global assessment,” BP’s absenteeism was excessive. It was significantly outside the “range of reasonable expectation for the employees” (Massey Fergusson), and it persisted over a period of 14 years. In my view to quote arbitrator Harris: “Manifestly, the absenteeism … has been excessive” (Sault Area Hospital).
25 The union alleges that in concluding the grievor’s absenteeism was excessive, the arbitrator made a number of errors, including:
- Failing to make any finding of what the employee’s absenteeism rate was in the months immediately preceding the dismissal.
- Finding that an absenteeism rate of 14.41 per cent in the first six months of 2008 was excessive and failing to recognize that it represented a substantial improvement.
- Finding that the employee’s absenteeism rate was excessive in the absence of evidence or findings of the average absenteeism rate among her co-workers and without finding what the employer’s absenteeism standard was.
26 In my view, there was ample evidence on which the arbitrator was able to come to the conclusion he did. The union submission simply invites the court to review the evidence in detail and substitute a different view of the facts. That is precisely what the court is prohibited from doing on a judicial review that is governed by the deferential standard of reasonableness.
27 There may be cases where the absenteeism at issue is so “close to the line” that an arbitrator must give greater consideration to a more specific comparator group or to the specific levels of absenteeism the employer has said it would or would not tolerate. But the arbitrator must be presumed to have specific expertise on employment issues. The grievor’s absences in this case were of such volume and persistence that the arbitrator concluded they exceeded any level that an employer could reasonably be expected to tolerate. In my view, that was a conclusion clearly open to him on the evidence and in the exercise of his specialized jurisdiction.
28 The arbitrator was not bound to narrow his focus to the more recent months or to give effect to a purported improvement that the union said occurred in the first half of 2008. Indeed, the Supreme Court of Canada in Syndicat des employé-e-s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 SCC 43 (S.C.C.) was critical of a “compartmentalized approach.” In the context of the entire period that the arbitrator considered, the apparent “improvement” was within the range of fluctuation that had been going for years.
29 The arbitrator may have chosen to give greater or lesser weight to individual pieces of evidence before him, but his finding that the grievor’s absenteeism was excessive can not in any sense be said to fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
30 The union also argues that the arbitrator erred in finding that the employee had received sufficient warning that her job was in jeopardy. Such a clear warning is required by the applicable case law and the union points out that the last formal warning letter was sent to the grievor more than two years before her dismissal. It therefore argues that she was lulled into a “false sense of security.”
31 The arbitrator specifically rejected that submission, and found that in addition to the seven attendance letters the grievor received, her absenteeism was discussed verbally with her on more than 20 occasions.
In fact, she was warned repeatedly, verbally or in writing, that her attendance failed to meet the standards the employer reasonably expected of its employees and that failure to improve would place her employment in jeopardy…The discussions and written warnings clearly and unequivocally put her on notice of the severity of the issue and she had ample time and opportunity to improve.
I consider that to be a pure finding of fact, supported by evidence accepted by the arbitrator, to which the court must defer.
32 The union also argues that the arbitrator erred in finding that “there was little evidence to support that (the employee’s) absences were beyond her control.” If such a finding had been made, it would be inconsistent with all of the evidence, but in my view the union has taken a single statement by the arbitrator out of context. That statement appears in paragraph 133 of the award, which reads in full:
- Aside from the depression/anxiety/dysthymia, which the employer broadly speaking knew, BP suffered from “co-morbidites,” including thyroid problems, avoidant personality disorder, and, from time to time, from minor, common ailments, such as colds, influenzas, sinusitis, urinary tract infection, eye problems, etc. When looking at her absences from October 2007 until October 2008, not including the long term absence, when she was off work for 37.88 days on 17 occasions, she was questioned on the reasons for the absences in relation to the records of her family physician. As mentioned earlier, the medical records seemed to indicate that she was off work for minor, common ailments. I accept that some of her BP’s absences were related to depression, anxiety or dysthymia. Other absences may be related to the “co-morbidities.” Other absences, again, may be related to the common ailments. In my view, there was little evidence to support that BP absences generally were caused by circumstances generally beyond her control.
33 It is clear from that passage that the arbitrator’s reference to absences that were not beyond the employee’s control relates only to some of the absences that occurred within a limited time period and was intended to point out that some absences were for reasons other than the principal disability that he found to exist. The arbitrator clearly accepted that a significant portion of the employee’s overall absenteeism was beyond her control. More important, the arbitrator throughout the award treated the case as one of non-culpable absenteeism and considered it in the context of the principles and authorities relevant to that issue.
34 The union argues that the arbitrator improperly relied upon medical evidence of the grievor’s current prognosis, rather than the prognosis as of the date of termination. Although the arbitrator stated, at paragraph 143 that “her current prognosis for regular attendance is poor” he also said, in the next paragraph that:
In Dr. Hashmon’s opinion, as of the time of termination in October 2008, there was no prospect of regular attendance at work. BP past attendance record is a good predictor of her future attendance. In Telus (Archibald), and other cases, arbitrators have accepted that an employer is entitled to rely on a grievor’s entire record of excessive absenteeism to infer that the pattern is likely to continue in the future. In my view, that is a proper and reasonable inference.
35 The arbitrator heard medical evidence from two psychiatrists who assessed the grievor after her termination. The opinion that he accepted, explicitly stated that the grievor’s “prognosis for regular and consistent attendance in the work place at the time of her termination on October 8, 2008 was guarded.” The arbitrator therefore considered, as he was required to do, the issue of whether the grievor would be capable of regular attendance in the future and found, on the basis of all of the evidence, that she would not.
36 On review of the entire award, I find that the arbitrator considered the evidence before him, reviewed the applicable authorities governing non-culpable absenteeism and came to a decision that meets the standard of reasonableness.
Standard of Review — The Human Rights Analysis
37 Although the union concedes that the reasonableness standard applies to most aspects of the decision at issue, it says the arbitrator’s interpretation and application of human rights law must be reviewed on a standard of correctness. A similar argument was specifically rejected by this court in Canada Post Corp. v. C.U.P.W., 2007 BCSC 1702 (B.C. S.C.).
38 In Dunsmuir, the court made clear that the reasonableness standard extends to a tribunal’s interpretation of “its own statute or statutes closely connected to its function, with which it will have particular familiarity”: at para. 54 (emphasis added). In Nor-Man Regional Health Authority, the Supreme Court of Canada held at para. 49 that the reasonableness standard extended to review of an arbitrator’s application of general common law or equitable doctrines:
Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.
39 Section 15 of the Canadian Human Rights Act, R.S.C., 1985 c. H-6 states:
- (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; …
- (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
40 The identification of bona fide occupational requirements and the consideration of whether accommodation does or does not impose undue hardship on the employer are clearly issues dealing with the proper functioning of the workplace and the employment relationship — matters on which the arbitrator is presumed to have expertise. The relevant provisions of the Human Rights Act must qualify as a statute “closely connected” to the arbitrator’s function under both the Labour Code and the collective agreement and the arbitrator’s application of them must be subject to a deferential standard of review.
Discrimination and the Duty to Accommodate
41 The arbitrator found that the grievor suffered from a number of physical and mental conditions that amounted to a disability. Because the decision to terminate her was based on her entire absenteeism record, including absences related to her disability, the arbitrator found that the union had established a prima facie case of discrimination and the onus was on the employer to justify the dismissal on the basis of bona fide occupational requirements.
42 In British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., [1999] 3 S.C.R. 3 (S.C.C.), the Supreme Court of Canada, at para. 54, set out a three-part test that an employer must meet in order to establish on the balance of probabilities that a prima facie discriminatory standard is a bona fide occupational requirement:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
43 The arbitrator considered and applied that test and found that:
- Attendance is a bona fide work requirement in light of the very nature of the employment contract.
- Attendance requirements were implemented in an honest and good faith belief that they were necessary and that the evidence did not support the employee’s assertion that the employer’s conduct was “malicious and highhanded.”
- The employer had put in place all of the specific accommodations requested by the grievor and her physician over the years, had relaxed the attendance standards for her and had “tolerated significant absenteeism over many years.”
- No further accommodation was possible, other than tolerating continued absenteeism.
44 I recognize that the union takes issue with some of these findings of fact, but I consider them to be findings that were open to the arbitrator on the evidence before him. Once again, the test is not whether I would have come to the same conclusion on the evidence, but whether the arbitrator’s conclusion was a reasonable and supportable one based on that evidence.
45 To some extent, the union’s challenge to the arbitrator’s findings turns on interpretation and semantics. For example, the union argues that TELUS did not, in fact, relax its employment standards. TELUS certainly did not tell the grievor that she would be permitted to be absent for a specified number of days over and above the corporate average in each month or year. But I understand the arbitrator’s finding to mean that TELUS effectively relaxed its attendance standard as part of the process of tolerating the grievor’s absence as long as it did.
46 The arbitrator recognized that there was no evidence quantifying the financial impact of the grievor’s absences or suggesting there was any difficulty replacing her when she was absent. However, he found that Ms. Laviolette had “spent considerable time and effort over the years trying to manage” the grievor’s absences. He concluded that it would not be reasonable to expect the employer to simply continue to tolerate her absenteeism and “there has to be limit to accommodation.”
47 The arbitrator’s analysis and conclusion was consistent with the general principle stated by the Supreme Court of Canada in Hydro Quebec. The court said the duty to accommodate does not change the fundamental nature of the employment contract, which is “the employee’s duty to perform work in exchange for remuneration.”
17 …However, 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, the employer will have discharged its burden of proof and established undue hardship.
18 Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these, circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.
48 The arbitrator in this case considered the evidence and reached a similar conclusion. No error of law or overriding factual error has been demonstrated and there is no basis on which this court, applying a reasonableness standard of review, can or should interfere.
Sufficiency of Reasons
49 Finally, the union argues that the reasons as a whole are deficient and amount to a breach of the procedural duty to provide reasons. That argument is premised on the submission, which I have already rejected, that the arbitrator failed to make specific findings on such matters as whether the Employer had just cause, and the grievor’s absentee rates in the months prior to her termination.
50 In any case, the argument that arguably deficient reasons amount to an absence of reasons is foreclosed by the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses Union, which neither the parties nor the court had the benefit of at the time this application was argued. In that case the union argued that a correctness standard applied because “the arbitrator’s reasons amounted to ‘no reasons’.” Referring to its decision in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), the court said at para 20 and 22:
[20] …Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some form of reasons” for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness…
[22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
Conclusion
51 The arbitrator issued a lengthy award that considered the evidence in detail, reviewed the applicable legal principles and clearly set out his reasons for reaching the conclusion that he did. Viewed in its entirety, the award fully meets the requirement for “justification, transparency and intelligibility.” Other arbitrators may or may not have taken a different view of the evidence and reached a different conclusion, but the decision made by the arbitrator clearly falls within the “range of possible acceptable outcomes.”
52 The application to set aside the arbitrator’s award must be dismissed.