IN THE MATTER OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2
IN THE MATTER OF AN ARBITRATION
BETWEEN:
TELECOMMUNICATIONS WORKERS UNION
UNION
AND:
TELUS COMMUNICATIONS INC.
EMPLOYER
[BP – Union Grievance #2008.295 – Termination]
Arbitrator: Ib S. Petersen
Date of Hearings: May 7, June 23-25, July 5-9, 12-13, September 9, 10, 17, October 29, 2010
Date of Decision: January 24, 2011
Appearances:
Mr. Don Richards and Jennifer Cowan, counsel for the Employer.
Ms. Shona Moore, Q.C. and Mr. Ryan Goldvine, counsel for the Union.
A. Introduction
On July 6, 2009, the Minister of Labour appointed me, under Part I of the Canada Labour Code, to arbitrate the dispute between Telus and the TWU concerning the dismissal of the Grievor.
The Employer terminated the Grievor’s employment in October 2008 for excessive absenteeism. She was diagnosed with depression, and Telus considered that she was unable to attend work on a regular basis despite accommodation. The Union grieved the termination. It was contrary to the collective agreement and the Canada Human Rights Act. The Grievor suffered from a disability, depression, a condition known to the employer since her date of hire, and on an ongoing basis. Her absenteeism was not excessive, but, in any event, was related to her disability and did not cause the Employer undue hardship. Moreover, the Employer failed to accommodate her.
At the hearing, the employer called testimony from Brenda Laviolette, the manager of Operator Services in Prince George and the grievor’s manager, Tess Moore, Telus Senior Labour Relations Consultant involved in the matter, and Dr. Kenneth Hashman, a psychiatrist who provided an expert opinion. The union called the grievor, Tamara Marshall, a union business representative and acting secretary-treasurer, Kristine Pawluk, a long time shop steward, and Dr. Harinath Mallavarapu, a psychiatrist who provided an expert report.
B. Facts and Background
In the circumstances – the lengthy hearing, viva voce evidence covering a long period of time, as well as substantial documentary evidence, I set out the facts and background in considerably more detail than I usually would. I apologize to the parties for the delay in issuing this award and appreciate their patience.
To the extent there are conflicts in material facts, I resolve those on the well established principles in Faryna v. Chorny, [1951] BCJ No. 152 (BBCA), per O’Halloran JA:
11. … The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
BP was a long-term full time regular employee of B.C. Tel and Telus. She started her employment in August 1982, and worked as an operator in Operator Services in Prince George, British Columbia between 1983 and 2008. She was also a long-time union shop steward, “officially” until her term ran out in 2007, although she did some work with the union until August 2008. Throughout her employment she struggled with her health, physically and mentally. BP was diagnosed with a number of medical conditions, including “dysthymia,” chronic low-grade depression, with major depressive episodes. Over the years, she had a considerable number of absences from work.
On October 8, 2008, Telus terminated her employment for “innocent absenteeism:”
Dear BP
You continue to be unable to fulfill the important requirement of regular attendance. Over the last few years of your employment with TELUS, you have been absent from work for an unacceptably high number of shifts. Since 2000, your record of absences is as follows:
Year Total Number of Total Number of
Days Absent Occasions
2000 40.65 25
2001 39.73 29
2002 12.86 9
2003 26.12 23
2004 49.00 26
2005 17.73 8 (5 month work stoppage)
2006 129.62 15 (106 days-one occasion)
2007 5.00 3 (after 9 month medical leave)
2008 32.88 14
You have received many letters and warnings from the Company that your job was in jeopardy as a result of your inability to attend work regularly. Unfortunately, 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 that you are not capable of meeting your employment obligations with TEL US. Your employment is therefore terminated, effective immediately.
Brenda Laviolette
Operator Services M.gr
Laviolette has been a Prince George manager of Operator Services since 2000. In 2001, she became BP’s manager, and a part from a few months on loan to other departments, she remained BP’s manager until on October 8, 2008.
Operator Services in Prince George is a 24/7-call centre operation, providing services to Telus’ customers for directory assistance, collect calls and account adjustment. Calls are handled in accordance with established procedures and standards. There are similar call centres in Canada and abroad, including the Philippines, and calls are generally routed via computer to the next available operator, regardless of location. Operator scheduling is done though Resource Performance Management, RPM, in Calgary, Alberta. RPM staff is involved in various functions, including monitoring day-to-day call volume, forecasting call and answer volume, preparation of operator schedules, six weeks ahead. Schedules posted both electronically and in the office, are based on the anticipated call volume for particular days. Laviolette informs RPM of the number of employees that are available, for example, due to vacation. Operators may work shifts that include 8 or more days on, 3 days off, and have varying start times to ensure that the necessary staff is matched with the anticipated call volume. Once posted, schedules are rarely changed.
Operators are all fully trained and do the same work. Telus emphasizes efficient, professional, accurate and timely response to calls. The call centre is a “measured and monitored environment.” Accordingly, Telus holds operators to strict standards of adherence, and measures, for example, the time, or percentage of a shift, operators are “logged on” and ready to accept calls, and length of calls. The computer system records when operators are logged in, time and duration of calls, “make busy,” and generates information on “average not available time,” “average length customer contact,” or other measures. These measures have varied over time, and in Kristine Pawluk’s view it became more difficult to achieve success. The number of operators was at one point about 100 and that number had been reduced to about half by 2008. Laviolette explained that the amount of calls had also decreased. Operators had to be “plugged in” 97% of the time. In 2008, the employer’s expectation for time not “logged in” was 6 minutes per shift, not counting breaks. Average length customer contact was around 30 seconds. These measures are part of Key Performance Indicators (KPI) for individual employees provided in written form and discussed in monthly reviews, “one-on-one,” including attendance. Failure to meet objectives could result in discipline. The manager has access to daily reports through the Virtual Force Management System (VFMS), on adherence and attendance for her department.
Laviolette reviewed Telus’ policies in a number of areas, such as integrity, health and safety, and, as well, the Attendance Policy, with operators, at least annually. Telus did annual performance reviews until 2004, and semiannually after 2004. The reviews do not include Telus’ workplace accommodation policy, which is not applied in cases of medical accommodation, and apparently, is in the process of being re-written.
Attendance is important for Telus. A 2009 Attendance Management Program (AMP) suggested that the total hours lost to illness, not including long-term disability, average 1.4 million hours per year, equivalent to 700 full time employees. Absenteeism has less tangible impacts – lost productivity, decreased morale, and increased administrative resources. Obviously, Telus seeks to reduce absenteeism though an AMP. Essentially, the policy provides:
Employees who are considered to be excessively absent will be made aware that their absences are unacceptable. Excessive absenteeism that does not improve over time may result in termination of employment.
The AMP, in its various permutations, provides guidance to managers with “flexibility … that allows managers to adjust and manage individual situations as may be appropriate.” Generally, with respect to non-culpable absenteeism, the policy provides for informal/formal and documented discussions, followed by four or more letters of “concern” warning of consequences of failure to improve attendance. A second letter of concern included a “reminder that no improvement in attendance will result in further action.” A third letter could include a request for “medical documentation to identify medical conditions & prognosis of regular attendance.” If absences are disability related, the process should be adjusted as appropriate. A fourth letter of concern warned: “failure to attend work on a regular and consistent basis will result in termination.” If attendance remained unacceptable over an extended period of time, despite support, and the duty to accommodate, if required, has been met, termination could follow, where “medical evidence indicates that there is no reasonable prospect of regular attendance in the future.” The AMP provided templates to be adjusted to individual circumstances, and the letters detailed absences, attendance discussions, previous letters and offers of assistance. The policy required managers to discuss and explain the letters to the employee, and provided for ongoing review, monitoring and discussions.
Absences are noted on employee records, the “M47.” The form, computerized in 2006, includes payroll information, notes of employees’ self-reported reasons for absences, as “mechanically” recorded by clerical staff, and attendance discussions.
As line manager, Laviolette is responsible to ensure that her department meets its objectives, including employees’ attendance and KPI. Labour Relations provides guidance and advice to line management on a variety of issues, including performance, attendance and accommodation. Where accommodation is involved, Telus’ Health Services receives medical information from employees, or their physicians. Health Services may also with consent request additional medical information. This information is confidential, and is not shared with line management or, indeed, Labour Relations.[1] Health Services advises line management of fitness for work, prognosis, return to work, functional limitations, arranges assessments and evaluation of ill or injured employees, and in consultation with management and Labour Relations recommend accommodations for employees.
Generally, Health Services receives medical information though the Practitioner’s Assessment Form. The purpose of the PAF is to assess employees’ fitness for work and level of disability, and, as well, to ensure that benefit claims receive proper consideration. A PAF is required for any accommodation. It ensures that Health Services is aware of the circumstances, and can determine if accommodation is required. The manager completes Part One and provides it to the employee. The employee completes and signs an authorization to release information medical information to Telus’ Health Services, valid for a maximum of six months. The doctor completes Part Three, which provides information about diagnosis, treatment, functional limitations, prognosis and fitness to work with modifications. The instructions that accompany the PAF provide that the information is confidential and must be returned to Health Services only. Health Services receives and processes medical documentation, and determines if an absence if “medically supported.” Health Services reports to a manager what he or she needs, or is permitted, to know.
This is consistent with the description in an earlier award between these parties, Telus (PAF Form Grievance), unreported, July 9, 2003 (Williams), the panel noted that although Health Services gather medical information, the only information released to an employee’s supervisor is: (a) whether the employee is disabled; (b) when the employee is expected to return to work; and (c) what, if any, modifications are required to the employee’s work once he/she returns. The manager is not informed of the medical condition. The information is “translated” by Health Services into functional limitations and how those affect the job upon the employee’s return.
When Laviolette became Operator Services manager in 2001, she reviewed the employee files and met with all operators. She maintained contemporaneous, detailed and comprehensive notes with respect to important conversations involving BP. In my view, BP, perhaps not surprisingly given the length of time covered, and, perhaps, her medical conditions, had less specific recall of many of these conversations or occasions. I found her testimony generally to display a propensity to favour what she perceived to be advantageous, as well as contradictory in places. She took little responsibility and tended to blame others, including her doctors. I hasten to add that I do not believe she was deliberately untruthful, and that her testimony reflected her perceptions and beliefs.
Laviolette was concerned about BP’s level of absenteeism. Her “numbers” were significantly higher than the corporate average, including more than 50% absenteeism in 1998, and Laviolette told BP that her absenteeism needed to improve. She met with BP on October 2, 2001, and told her that further conversations would be “documented.” A few days later, Laviolette received a call from Lori Ruggles, a friend of BP and sometime president of the union local, who told her that BP was upset about the meeting. Ruggles told Laviolette that BP’s common law spouse had committed suicide in 1998, and she still suffered from depression. Laviolette told Ruggles and, subsequently, BP, that she did not intend to dwell on the past; she only wanted to deal the future.
Laviolette’s concern with BP’s absenteeism was a common feature in the performance evaluations. The evaluation for 2001 indicated that her absences had it been 14.08%. Subsequently, Laviolette had a number of conversations with her concerning her performance and absenteeism. Generally, the main problem was her absenteeism – “everything else is good.” On October 24, 2002, Laviolette issued the first “unacceptable attendance” letter to BP. Her “inability to attend work on a regular and consistent basis [is] a concern.” As with subsequent letters, it was based on a template from the AMP. Laviolette advised that she would monitor attendance with the expectation of a “significant and sustained improvement.” She also offered her assistance. BP’s performance evaluation for 2002 indicated that her absence rate was 18.23%.
Attendance remained a concern in 2003. In July Laviolette had a discussion with BP, whose mother had been very sick for months with “heart & lung problems.” While she had intended to give BP another attendance letter, she did not, “because of what she has been going through.” After the discussion, BP was again late or absent from work on several occasions. On October 16, 2003, BP received her second attendance letter. BP disclosed to Laviolette that she had an “illness (depression).” Laviolette gave BP a PAF, and told her to take it to her doctor so Health Services had “something on file for her.” As well, Laviolette printed off information about depression for BP from the internet. There is no PAF with respect to depression at this time, although Telus’ medical file contains PAFs that mention depression going back to the early days of her employment. The letter also advised that Laviolette was “available” to assist her, and referred her to Telus’ Employee Assistance Program and TWU’s Member Assistance program. At this stage, Laviolette knew that BP had a “medical condition,” although she did not know the degree or extent of the condition. As well, to place her knowledge in context, BP also on numerous occasions told her that she was absent for reasons related to family issues and other more “common” ailments, such as colds, influenza, infections etc. There is no dispute that depression may constitute a disability.
In any event, on December 4, 2003, she had another attendance discussion with BP. She advised her that 2004 target is 6% [absenteeism].” BP told her the absences were related to “stress,” and Laviolette offered her assistance: “She may call me when she is having a stress attack just to talk. I also offered to go for coffee with her before work if that will help.” However, the following day, BP was off work, and told her manager that it was due to a bladder infection. BP was off the last week of December, according to the PAF due to “influenza.”
In the 2003 performance evaluation, Laviolette noted BP’s high absenteeism but recognized, as well, that she was trying. She “will often try to come in to work, but is unable to stay and books off part way through the shift.”
BP’s attendance remained a concern. In March and May 2004 Laviolette had more attendance discussions with BP. A PAF from mid-June noted that BP suffered from “fatigue cause unknown” and “depression,” did not mention any functional limitations, and the expected prognosis was “recovery.” In June, Laviolette told BP that she had had “more than enough chances.” The third (June 24) attendance letter noted: “there has been no improvement in your ability to attend work on a regular basis.” Laviolette told BP that she required a doctor’s note after each absence, and would not be paid until it had been received. Laviolette denied she did not believe that BP was “really sick.” The doctors’ notes bring the concerns to the doctor’s attention. They wrote out an action list. Laviolette offered “to help her however I could … she is a great operator when she’s at work.” She gave BP her cell number to call anytime, and offered to “get her at home and bring her to work if that would help her. We agreed to work together to improve her attendance.” BP acknowledged that the manager was trying to assist.
When Laviolette reviewed “adherence” in mid-July, 2004, BP gave her a doctor’s note, stating that she needed to be able to get up and move around. Laviolette contacted Health Services, which advised her that BP required a PAF, and “we can accommodate.” Laviolette printed a PAF for her. She offered to work the same hours as her. A week later, Laviolette again reviewed “adherence.” Her month average was 54 minutes of work missing per day, and that the rest of the group had to be at 100% for the team to meet its objective. However, if her doctor required a five-minute stretch break every hour, her new objective would be 91%. Her “adherence” the previous day was 81.61%. In a July 26 PAF, BP’s physician diagnosed “dysthymia” and requested that she “should be able to get up and move about as needed to reduce stress.” Health Services considered the request and, in consultation with Laviolette, provided temporary “micro breaks” for BP. On July 26, Laviolette emailed her director, asking if it was “OK if I take her out of vfms for opcont.”[2] She was trying to give her extra time, and BP’s adherence improved in the following days. When BP had no absences June 22 – September 4, Laviolette congratulated her. She reported to her director that BP was “doing well,” that she spoke with her every day and that BP was “trying hard.”
However, in October 2004 Laviolette had more attendance discussions with BP, and told her that the next step was going to be another “letter.” They wrote out a new action plan. It stated: “do not cross the line.” In Laviolette’s view, BP was a committed to having no further absences. However, two days later she went home sick. The November 4, 2004 fourth attendance letter noted: “attendance has not shown any satisfactory improvement,” and warned that the “failure to attend work on a regular and consistent basis could result in termination of [her] employment.” Laviolette reviewed attendance with her, and told her that her that absences in less than three years equaled $15,000 in wages. She was excellent when she was at work.
In a November 4, 2004 Laviolette emailed her director: “still has some hope left – not much, but still a bit.” She agreed she had not “specifically requested Health Services to look into BP’s underlying condition,” but she had provided the PAF. On November 17, BP booked off, having already booked off twice that week. Laviolette noted:
I called her at home and she said she would come in after her lunch. She was sleeping, forgot to take her pills yesterday. [BP] came in at 15:30 & came & talked to me for 1/2 hour. I adv her that one more book off & I would be giving her a letter that requires a doctor documentation after every absence. [BP] was quite stressed when she first came to me, but after 20mins, she was relaxed. [BP] asked that I call her every day at 11:00, and she will come to work 1/2 hour early to sit & talk to her to relax before starting her shift. [BP] said that she gets stressed over having to meet all these objectives. I told her that the only thing she has to worry about is being here & keeping her butt in the chair. She has great customer service & her work times are good. All that flows naturally for her. She said she worries about it not flowing anymore. I told her that she does not have to worry about that, just to get into work.
In December Laviolette called 11:30 AM every day. In December BP’s absences included some part shifts. Laviolette was not pleased and told her, having “and messed up December already,” she expected her to be at work all of January, February and March.
On December 20, Laviolette prepared the fifth letter requesting medical documentation, copied among others, to the union and Labour Relations, requiring BP “to submit appropriate medical documentation … to support [her] absence, within five days of the first date of absence from work.” Ostensibly, this was to ascertain if BP required accommodation. The letter warned: “Failure to provide the appropriate documentation within the above noted timeframe will result in further discipline up to and including termination.” While BP explained that she felt “confused” and “didn’t know what it meant,” she did not ask the manager or the union, somewhat surprising, as she was a long time shop steward. She said had a very hard time with friends and family having been diagnosed with cancer. She was very upset, felt that she “couldn’t cope,” “totally stressed out,” and found it a “struggle” to meet “adherence” targets.
Overall, the 2004 performance evaluation reflected her absences: her absence rate for the first six months of 2004 was 26.2%, and she was absent on 26 days in the last six months of 2004. As well, BP was often a couple of minutes late logging on at the start of her shift. BP agreed that she was “good at [her] job.” In 2004, Laviolette, who knew of BP’s “depression,” was increasingly concerned about her continuing absenteeism and tardiness, despite the assistance and support provided, and termination was beginning to loom in the horizon. Based on the information from BP’s doctor, temporary accommodation was put in place in the form of micro breaks.
However, in January 2005, BP had more absences. On January 21, 2005 Laviolette gave BP a “bridge letter,” advising of continued substandard performance despite coaching, meetings and letters of concern. BP was given a 30 days to improve her performance before “entering into formal disciplinary review process.” Laviolette told her that she would meet with her daily to review the previous day’s results. Laviolette told her that she would help her however she could. BP’s objective remained at 91%. In Laviolette’s view, she was able to work at 97 to 98% if she took the correct amount of time on her breaks. At this point, BP was scheduled off work for the five-minute micro breaks, which did not count against her “adherence.” Laviolette did not inquire into BP’s medical condition, and only had the information provided to her by Health Services and BP. An email from Health Services to Laviolette, on February 2, stated that Health Services had received a PAF, which supported the “micro breaks” and that “no further medical [was] needed.” The PAF indicated that BP was fit to return to work with accommodation provided by the micro breaks. BP agreed that the micro breaks eased her stress. Ultimately, Laviolette, her director and Kate Nemetz, Labour Relations, discussed the situation and decided, properly, in my view, not to go down the “disciplinary road.”
In late February 2005, Laviolette and BP discussed the previous weeks adherence. She spent 8-13 minutes extra time every day on her breaks, and if she returned to work on time, she would be at 97-98% every day. BP said she had been playing “Solitaire” on the computer on her breaks, and the clock on the computer was out of synchronization with office clocks. According to Laviolette, she “agreed & was quite shocked that she could have such a good result & it was all about being on time for her breaks.”
On March 23, 2005, Laviolette noted that BP had been off a few days or, on a number of days, only worked half shifts. BP came to see Laviolette, and told her that she had “a lump on her breast that she is having difficulty dealing with” and was “very stressed over [the] situation.” Laviolette “tried to talk to her positively,” and she seemed “OK for a bit.” Laviolette told that she still needed doctors’ notes for the time off. BP said she did not think she had to do that anymore “because she had been good for a month.” Laviolette insisted, and said that she would not get paid until she had the doctors’ notes. Laviolette noted that BP “lost it at my desk & started crying.” BP felt the manager was “ruthless and uncaring.” Laviolette took her out for a walk, around the block and to the Brick, and looked at some couches. Before going back to work, BP stopped at the loading bay, and said she was first going to have a cigarette. Laviolette said “okay.” However, two hours later BP called RPM and said she was going home sick.
On March 31, BP’s doctor took her off work for one month. BP told Laviolette that she had to go back to the doctor because she forgot to sign the PAF. Laviolette told her to have the doctor fax the PAF to Health Services. When Health Services had not received the PAF on April 4, 2005, Laviolette called BP, who explained that she mailed the form from the doctor’s office. She had forgotten to ask the doctor to fax it. However, the doctor did not sign the PAF until April 5. On April 8, Laviolette called Health Services to ascertain if the PAF had arrived. An April 8 email from Health Services confirmed that. The diagnosis on the PAF was “depression, anxiety” and set out a number of functional limitations: lack of concentration, difficulties performing tasks, and that she was tearful. It set out functional limitations: BP “cannot concentrate, cannot perform tasks as quickly as desired.” However, It also stated with respect to return to work as of May 5, BP’s prognosis was “excellent.” Consistent with policy, Health Services did not share the details of this information with Laviolette. For her part, BP felt that Laviolette had no real understanding of her situation – she was “in panic.”
In May 2005, BP was off on many occasions. On May 5, Laviolette had a conference call with Nemetz and Ms. Meredith Martin, Health Services. Martin indicated she could send ask the doctor for information. As BP was scheduled for surgery on May 19 for possible breast cancer, “we want to leave any further disciplinary action alone until after she receives the results of her surgery.” On May 10, Laviolette inquired of Health Services if there was an end date to the micro breaks. On May 12, Ms. Martin emailed her, asking for BP to call her. She arranged for that. Laviolette also inquired of Health Services whether it was “OK” for BP to leave the building during her breaks due to concern about safety/WCB. BP called Laviolette on May 21 and told her that her doctor suggested she be off work for a week after her surgery. Laviolette told her that she needed a new PAF. Health Services confirmed that. A few days later, she advised BP to pick it up as soon as possible. She told BP that the absences prior to May 19 were unpaid, as she had not provided any documentation for those days. On May 24, Health Services requested medical reports from BP’s family physician and psychiatrist to better understand the nature of any functional limitations and plan for a successful return to work. The information received did not alter the view of BP’s absences. In my view, there was consultation between Laviolette, Labour Relations and Health Services regarding BP’s condition and her absences.
After her surgery, BP returned to work on May 27. The surgery had turned out well. However, she went off work on the next few days. She brought in a doctor’s note, dated May 28, which stated that she was unable to work for two or three days due to the surgery. Laviolette emailed Martin to confirm if this was covered under her surgery. She reviewed BP’s absences for the month of May, and advised her that, while Health Services had documentation, that did not support any absences in May, which would remain unpaid. BP informed her that she was going to see her doctor and have the PAF completed for the absences related to her surgery, starting May 19. Laviolette and BP reviewed her absence records, and told her that “she is out of letters, she has received five and there are no more.” She told her that she did not have any medical documentation to support her micro-breaks. Apparently, BP disagreed with that. Laviolette told her that the latest information provided by her doctor said that she was fit to return to work full-time as of May 1. BP said she would talk to her doctor about it. In my view, Laviolette was mistaken with respect to the medical support for the micro breaks. They appear to be covered by the February PAF. In any event, BP provided a PAF on May 31, which reiterated to previous diagnosis. Her doctor asked if it was “appropriate to force this patient to repeat these steps?”
In June 2005, BP had more absences. On June 14, BP called Laviolette, and “said she had been up all night coughing.” Laviolette said: “what are we going to do with you?” BP responded, she “didn’t know.” Laviolette said that they would talk when she got to work. As Laviolette intended having an attendance discussion with BP, she emailed Health Services “looking for a PAF for accommodation for BP.” Health Services confirmed that the micro breaks were still supported. On June 16, BP came to work “coughing & sounded terrible.” She brought Laviolette a note from her doctor covering June 8-12. Laviolette required a note for June 14 – the note she had brought specifically provided for return after June 12. BP said she had called her and told her about her absence. Laviolette insisted on a doctor’s note. BP later provided a note for the June 14 absence, and Laviolette changed her pay status to “paid sick.” In my view, BP knew that her absences was a problem and that she was required to provide medical documentation in a timely fashion. Yet, on several occasions, she failed to do so. In the result, in my view, Laviolette was losing patience and was moving towards termination.
Subsequently, Laviolette, her director and Nemetz discussed how to proceed. Ms. Nemetz said she would discuss it with her director. On June 17, Nemetz discussed the situation with Martin and Health Services. Martin wanted to get an independent medical opinion, and “will be sending a specialist to Prince George.” She also wanted BP give her a call. On June 16, Health Services advised Laviolette that BP’s temporary accommodation (the micro breaks) had been approved, and “to be renewed in 6 months.” Laviolette advised Nemetz that she would tell BP that “today that this is her last chance & she is really close to losing her job, I want to make sure that I’m totally clear & Bonnie has complete understanding of how serious this is….” In fact, on June 17, 2005, Laviolette drafted a termination letter for BP. However, she testified that she wanted to give BP another chance, and decided not to proceed. Laviolette had no direct knowledge of what Martin told Nemetz, and did not know if Martin, in fact, sent the specialist to Prince George. I think it likely that cooler heads prevailed.
From the Medical Progress Notes, it appears that Ms. Corinne Wilander a nurse with Health Services noted that she reviewed BP’s file for accommodation in August, and emailed Laviolette an accommodation request. Wilander noted, in the Medical Progress Notes, that BP was diagnosed with dysthymia, which is long-term depression for more than two years. A depression related chronic condition was on Telus’ “radar.”
On June 22, Laviolette talked with BP, showed her attendance chart, and told her that she had received many letters and they all (not quite correctly) say “up to and including termination.” However, her absenteeism remained substantial: in 2001 it was 18.97% compared to 4.34% corporate average; in 2002, 6.62% compared to 4.39% corporate average; in 2003, 15.05% compared with 4.30%; In 2004, 22.66% compared to 4.26%; in 2005, 43.12% compared to a 4.53%. Laviolette told her that she had to make immediate improvement. In my view, BP understood that she was on her “last leg.” Laviolette told her that she had to understand how close she was to termination. Apparently, BP said that sometimes she really was sick — “like now … a bad cough and laryngitis.” When Laviolette showed her that she was at 43% absence, year to date, according to Laviolette, BP was shocked. The performance review for January-June 2005 noted that BP continued to struggle with attendance, being absent 39.1% of her scheduled time, including on benefits.
There was no performance evaluation done for the balance of 2005 because employees were off work due to the protracted industrial dispute between July and November.
BP and others testified that Laviolette told them after the labour dispute that Telus no longer honoured accommodation. Laviolette denied that. She said she “asked for an update to see if [there was] any change.” BP did not recall specifics of when and where she was told. She understood that the policy applied across the board. While she found it surprising, she did not challenge the statement. She explained that she did not have an “understanding what accommodation was.” I find that surprising, as she was a long time shop steward. In all fairness, she also explained that, after the labour dispute, there was a new collective agreement, and she did not know what it covered. Pawluk also testified that Laviolette told her that Telus no longer did medical accommodation, and disagreed that she had asked for updated medical information. She said she was told in January or March 2006 in a meeting in Laviolette’s office. She took notes, but she later burned them. More to the point, she continued to receive temporary accommodation, due to an injury sustained in a motor vehicle accident, after she provided the PAF. Health Services emailed Laviolette in June 2005, confirming receipt of BP’s PAF, supporting a six-month extension of the micro breaks, and asking her to get another PAF on November 30, which would have been around the time of the alleged comments to BP. Telus generally continued to provide medical accommodation as required by law and the collective agreement. While there may have been a time after the labour dispute, when there was no “official” sanction of the micro breaks, Laviolette continued to allow them. In all of the circumstances, I do not accept that Laviolette said that Telus no longer did medical accommodation.
On January 8, Laviolette gave BP a “commitment letter” and discussed it. Among others, the letter provided:
You are required to attend work on a regular and consistent basis. The expectation is that you will adhere to your scheduled shifts – arrive and logon to take calls promptly at the start of your shift, leave for and return from breaks on time, attend team meetings and other off-board time as scheduled, with minimal absence from work. It is extremely important that proper processes for reporting unscheduled absences be adhered to so we can appropriately manage our line to support our customer requirements.
Laviolette noted that BP had an average of 36 minutes per day where she was not available to take calls, including micro breaks. BP felt that Laviolette was “rigid” on her KPI statistics.
In May 2006 Mr. P. booked off two days, she arrived 30 minutes late and left one hour early on May 1. In the result, on May 2, 2006, she received her sixth attendance letter. In late April 2006, Laviolette had emailed Stephanie Clark, Nemetz, and Lisa Vile, her director, that she intended to give BP a further attendance letter, because she had failed to provide medical documentation for her absences within the five days required. She noted that BP’s “attendance has not improved over the last few years and shows no sign of improvement in the future.” Laviolette’s noted:
2 – BP called in to RPM 10mins after the start of her shift to say she had a doctor appt & wouldn’t be in until after her lunch at 1630. At 1545 BP called RPM to say she was going home & not coming in at all. 4 -1 gave BP her attendance letter; once again she seems to understand that she needs to be here. Her real problem is lack of motivation to get out of bed & accomplish anything in the day. She took AX today for all but the 15minutes to talk to me, she said she was going home to bed. I said no, go home & lie on a lawn chair on your patio because its a beautiful day. She agreed & said, she was going to do that. She seems to do much better with her attendance in the summer months. She also said to me that she had a plan to save for retirement for the next 5 years (she is 47 now). I told her that if she doesn’t improve her attendance that it will screw up her plan completely because she won’t be here. I also told her that this was letter #6 and most people only get 4 letters before they are out the door. I multiplied the 154 days she’s been absent x $151/day and showed her that the company has paid her $23000 to stay at home in bed. She asked what it would take for all these letters to go away, I told her that she had to have perfect attendance for the rest of the year, but they still wouldn’t go away because its a letter of concern & that I am concerned about her. She knows I care, and she says that she cares as well & she will try. I also said to her that I’ve heard that before….
BP, on the other hand, felt that Laviolette “didn’t care” and “put money over health.”
The May 2, 2006 letter detailed previous letters and discussions regarding BP’s “inability to return to work on a regular and consistent basis,” and her absences between 2002 and 2006. It reminded BP (again) of the requirement to submit medical documentation to support any absence, within five calendar days of the first date of her absence from work. Failure to comply with this requirement would result in the time remaining coded as unpaid. As well, the letter stated “in order that there are is no misunderstanding the company’s position, the failure to attend to work on a regular and consistent basis could result in termination of your employment with Telus.” BP felt that Laviolette did not understand that she was struggling and, at this time, it was an accomplishment just getting out of bed. She had pain – “not just in her mind, but in her body.”
While Laviolette may not have contacted Health Services to ascertain of there was “any information concerning the causal link between BP’s absences and her medical condition,” as put to her in cross, she had, however, communicated with Health Services and others regarding BP. Health Services had been involved in the file on an ongoing basis. On May 24, Penny Kruper, Regional Operations Coordinator, BC Retail, emailed Roz Maddren, Health Services, and copy to Laviolette, and referred BP’s file to her for review and advice on the “next steps.” The email noted the absenteeism issues and that “we are near termination” in the AMP process. It noted that Ms. Martin had suggested an IME in June of 2005 to determine fitness for work: “We need to ensure that there are not any issues that we are not aware of before we continue.” In the circumstances, the question of accommodation did receive consideration related to the condition known to Telus, namely depression/anxiety/dysthymia.
On May 26, 2006, Laviolette noted:
26 – BP continues to be off sick since May 12, time is being coded as unpaid as she has not provided any documentation to-date. Ros advised Penny that they have no further medical documentation from BP since last year.
On June 5, 2006, BP received her seventh attendance letter, restating the company’s position that failure to attend to work on a regular and consistent basis could result in the termination of her employment. BP received the letter in a meeting attended by Laviolette, Ms. Diane Strang, another Prince George manager, BP and Pawluk. The notes from the June 5 meeting provide, in part:
Purpose – To deliver the 7 attendance letter to BP
…
Brenda -I have a letter for you. It is very similar to the last letter you received. You must provide doctor documentation within 5 days of the first day you are away. It must be in by 5 days.
…
BP -I didn’t know that, I am on new medication and it has been difficult to get it adjusted. I have a real hard time communicating, a hard time talking to my doctor. I am changing doctors but I don’t really like the new I have either. I saw someone who was relieving for him today and I like him. I could talk to him.
…
BP – This is my 7th letter.
Diane – BP you must know that you are way down that road.
BP – Yes I know, and I am really afraid. I thought today was going to be it.
Diane – BP, Brenda and I are here like Kristine to try and help you, but there is only so much we can do. You need to talk to your doctor and get a mental assessment, have you done that?
BP – Yes, but then my doctor moved.
Diane – Ok, you need to go in for an assessment.
…
Brenda – Have you talked to Meredith in Health Services?
BP – No
Brenda – They might be able to hook you up with a doctor for assessment. I will check to see if it would be Meredith or Ross.
Diane – Once you got a new mental assessment they might recommend a work accommodation. But that would be between you and the doctor. But it would give us something to start with, because right now HEALTH SERVICES has nothing to support you.
…
Brenda – Health Services has nothing there to support you, you need to have the doctor communicate with the Health department if there are any limitations, or accommodations that they may look into. I will let you know if it is Ross or Meredith, call them and be open and honest with them; they will be able to give you direction as to what your next steps may be.
…
Diane – Brenda and I are being very open and honest here BP, this is your last chance. If nothing changes you could lose your job. You need to take some steps to help yourself, get the mental assessment, talk to your doctor; you are at your 7th letter.
BP -I know I have been really worried; I get all wrapped up and anxious. I don’t want to speak to anyone, I don’t want to phone anyone, and I don’t want to do anything. Brenda can you leave me a note or something that can tell me what I am expected to do, like with the doctor’s form.
Brenda – Talk to Meredith or Ross, they will hopefully connect you with a doctor that can do mental assessment, and go for it from there.
Diane – BP you need to take some steps to help yourself or you are in danger of losing your job.
BP -I know, I have been really worried about it.
…. [emphasis added]
At this point, Laviolette seems to have realized that BP’s problems were, perhaps, of a greater magnitude, as she “seems to have serious mental problems where she gets in a situation where she cannot communicate at all.” Laviolette testified that that Pawluk was present at the meeting for additional support for BP, and because she was very close to losing her job. At the meeting, Laviolette gave BP a PAF to take to her doctor and have completed. However, from the corporate health file it does not appear that BP had her doctor complete this PAF from the June 5 meeting, and the next PAF was not received by Health Services until August 11, 2006. It “triggered” Laviolette and Strang encouraging BP to have an assessment.
BP said that the meeting was the first time since the labour dispute that she had been told she could be accommodated. As mentioned, I find that, at the very least, Laviolette had asked her for an updated PAF in November, after the labour dispute. Moreover, I find it doubtful that she would not have had some knowledge of accommodation from her role as a shop steward. Pawluk understood from the meeting that BP needed medical information to support her absences. She also understood that this was her last chance and that she could lose her job. While she did not take any steps herself to follow up on the meeting, she encouraged BP to speak to Ruggles, the union local president. Marshall explained that shop stewards provide liaison between members and management, and information and advice to members, although with respect to medical information and accommodation, they probably would refer to someone with more knowledge and ask a business representative. Pawluk said she had observed BP in “one-on-one” performance meetings with management, and said that BP was “visibly upset, angry, frustrated and sometimes crying.” She testified she had similar experiences – “not feeling good enough,” complaining about a “lack of fairness.” She had discussions with BP about the meetings in 2006-2008. However, she was not aware that BP had Monday – Friday shifts and consistent start times after she returned to work from long term disability in October 2007. There is no evidence that either BP or Pawluk spoke to any business representative about medical issues.
Laviolette made arrangement for BP to call Health Services. BP called Maddren, a nurse with Health Services (Martin was away), the day after the meeting, June 6, and they had a 45-minute conversation about her medical condition, her medication, counseling and discussed how they could assist her. From the Medical Progress Notes, it appears that BP told Maddren that she had a long history of dysthymia and sometimes just could not cope. As well, that she “don’t feel like going out and don’t care if I work.” Apparently, she also said that she has “used all her vacation and has been absent a lot this year however has never had a PAF to validate this.” BP said she would book a medical examination. She did not recall if she ever did. In any event, she went on long term medical leave in July. Laviolette was not a party to the call and Health Services did not report to call to her. She was in contact with Health Services, but did not receive any details about BP’s condition.
In early June, BP was late on a few occasions, apparently having misunderstood her start time. On June 27, 2006, Laviolette and BP had a discussion concerning her June performance. Laviolette noted: “she is way off track.” In the performance evaluation for January-June 2006 she commented that BP’s average absence rate for the first six months of 2006 was 16.77%, despite discussions and attendance letters, and required a substantial improvement. Laviolette indicated in the review that she would like to see BP improve her attendance – she “is an excellent operator when she is here.” In July 2006, when Laviolette was away from the department, her “replacement” manager advised her that BP had been late for work twice. He advised her and others, that BP was “off the board for 55 minutes yesterday as she went to lie down. Since she doesn’t have a medical accommodation and this happens frequently, this is hurting her adherence (90% for the month) and absolute adherence (88.61% for the month).” The next PAF on file was signed by her doctor on August 2, and received on August 11. On July 27, 2006, Laviolette prepared two letters for BP: one for being late for work, and another reminding her to provide medical documentation. However, when BP came to work, she gave Laviolette a note from her doctor taking her off work for two months. Laviolette told her she would get the letters when she returned to work. She did not give her the letters. Laviolette asked her to fax a PAF to Health Services, and mail in the original.
BP was initially expected to be off work for two months. On August 22, 2006, Laviolette received an email from Steven Mar that Health Services had received a PAF indicating a return to work date of October 1, 2006. The PAF repeated the diagnosis of “Depression/anxiety” and stated that the functional limitations were that BP was “unable to tolerate stresses generated at work – problems dealing with supervisor/interactions.” The prognosis was that she “should be able to return to work.” Mar advised Laviolette that Health Services required a new PAF by September 18, 2006, and to let BP know. She was, in fact, off work until October 2007.
While she was off, Laviolette communicated with Health Services regarding return to work date and PAF’s. Alison Biggs, Health Services, advised Laviolette that BP was approved for LTD benefits effective January 25, 2007, and that her paid sick time had expired January 17, 2007. Under Article 34 of the collective agreement, regular employees who are “unable to work because of sickness or non-occupational accident” are entitled to a certain number of days paid sick time, provided they meet the terms and conditions of “the plan,” in BP’s case 130 days. To re-qualify for paid sick time an employee must work 65 days without a disability related absence. In the result, BP’s absences between October 2007 and October 2008 were unpaid.
BP commenced her graduated return to work on October 2, 2007. In October 2006, Moore took over from Nemetz as Labour Relations Consultant for Operator Services in Prince George. She was in contact with Laviolette from September 2007 regarding BP’s return to work. From January 2008, she began regular communications with her regarding BP. In preparation for BP’s return to work, there were email communications in mid-September between Laviolette and Douglas Carra, Health Services, regarding BP’s status and return to work. On September 13, Carra advised her that Sun Life had approached Telus with “accommodation considerations” for BP’s return to work, proposing a one month graduated return to work period, and for “one month after that, her schedule will be normalized (five days a week consistently).” The email correspondence, September 13 to 21, between Laviolette, Carra and Marcia Carreira, a Sun Life Health Consultant, indicated that BP “specifically requests 5 minute breaks every hour and one hour lunches, on an ongoing basis.” Carra inquired of Laviolette whether it was possible to accommodate her one-hour lunches. Laviolette agreed it was possible to accommodate the breaks and the lunches. Apparently, the 5-minute breaks required “additional manual tracking.” Laviolette inquired whether BP (or Sun Life) was considering consistent workweeks as well. Laviolette also consulted RPM because a shift had to be created for BP and “keyed in.” Operators normally work in a pattern of 8 or 9 days in a row, with 3 or 4 days off. Carreira advised that BP “was really happy” that Telus was able to accommodate the breaks and the lunches. She also appreciated consistent workweeks (Monday – Friday) so she would “not have to work an 8 or 9 day workweek.” Carreira forwarded a formal return to work plan to Laviolette and Carra, a copy went to BP and her doctor “for review and approval.” Before she approved the return to work plan, Laviolette emailed Carra: “is this schedule okay with Health Services. It is fine with me.” Laviolette agreed that neither Health Services nor Sun Life disclosed medical documents on BP’s file or communicated regarding her medical condition.
The gradual return to work plan provided for an anticipated start date of October 2, 2007 and expected full time return to work date on November 5, 2007. It noted that the “goal” was to “[r]eturn to pre-disability employer and occupation with [permanent] accommodations,” and involved initial training. While BP testified that she did not recall seeing the plan prior to the arbitration, the document, which provided that “I have reviewed and am in agreement with this return to work plan,” was, in fact, approved and signed by BP and her doctor. In any event, BP testified that she felt that she went back to work too soon. However, her psychiatrist, who saw her on October 3, noted:
BP has gone back to work. She has gotten a lot of things she wanted, an hour for lunch, an opportunity to get up every hour and walk around, and a straight five-day work week rather than seven-day. So she is trying it now and seems to be doing okay.
She and I agree she doesn’t need to see me again at this point, but I will be happy to see her again if the need arises.
BP claimed that the psychiatrist had said she could go back to work, but that he had not discussed it with her. Sun Life sent a rehab specialist to Prince George. She testified that she felt “pushed” and just said what the specialist asked – “off the top of my head.” BP saw her family doctor on October 31, to review the return to work program. He noted that she was returning to full time work the following week, and that “[t]hings are going well.” I do not accept BP’s version. I am satisfied that she got everything she and her doctor asked for.
In addition to the plan, Laviolette provided further accommodation. On October 15, she met with BP, who appeared “still stressed about return to work.” BP expressed a preference for a 4 PM start time so she was not rushed to get to work. She was also worried about not being able to have a few extra days off at Christmas. She wanted to spend time with family, December 24 — 28, 2007. Laviolette advised her to let her know what she was looking for, and she would try to get approval from Health Services as part of her accommodation. Because vacation spots were full by March, Laviolette needed it to be part of the accommodation. Laviolette got the approval from Health Services. Carra agreed, “this time off would be beneficial for [BP].” BP agreed that this was helpful.
There were other communications between Laviolette and Carra. On October 23, 2007, Laviolette emailed Carra about BP going out for cigarette breaks on a five-minute breaks. He responded that it did not matter to him; while the breaks should be limited to five minutes, and he “would have thought stretching all refocusing would be more in order, but if the smoke helps…”. In October, Laviolette also made inquiries through the RPM manager, with respect to the accommodation of the 1-hour lunches. The payroll coding of her extended lunch break could affect vacation entitlement negatively, and Laviolette inquired if another approach was possible. Overall, at this time, Laviolette appeared supportive of BP. In November Laviolette emailed Carreira, confirming that BP had returned to work full time as of November 5, 2007 with accommodation requested. Health Services confirmed with Sun Life and Laviolette BP’s return to work to full-time work effective November 5, 2007, and that Health Services (and Sun Life) closed to her files.
BP booked off sick October 30, 31 and November 1 and 2, during the last week of her return to work program. In the first week of November 2007, BP was off sick four days. This was not paid time off. In early December, Laviolette and BP had a “one-on-one” regarding performance. Laviolette advised her that she needed to work on adherence. However, her performance was close to that of other employees. Laviolette testified that BP “was doing well,” and that she was “surprised she was doing well.” Although BP testified that she was “scared” at first to go back, she found that she could do the work. However, she explained that she was struggling to meet KPI. In the performance review for in July — December 2007, Laviolette noted event while BP just returned to work in October, she had four days absent in November and December, and that “overall absence results for 2007 is 35.63%.” BP vaguely recalled the review, and felt that it was unreasonable and that the pressure was not helpful.
In April 2008, Laviolette had a “one-on-one” with BP to review adherence. She had noticed that BP was taking different breaks from the ones set out in the permanent accommodation plan. Laviolette told that if she wanted different breaks, she needed to go back to her doctor. If the current accommodation did not work, she required approval from her doctor. BP said she was thinking about going back to the doctor because she sometimes needed to eat at 6 PM, and that it took a longer time than 15 minutes. Laviolette was never advised of a change.
In Moore’s opinion, it was advisable to obtain further medical information in the circumstances. Telus had provided the accommodation requested by BP’s physicians without improvement in attendance, and, therefore, more information was required to establish if further accommodation was required – “we needed to know if we had done all we could.” The prognosis letter is a standard letter used by Telus to obtain further medical information. Marshall was familiar with the prognosis letter. Although she did not like it, in her view, it was in the best interest of the member to provide as much information as possible to fashion appropriate accommodation. The employer relies on doctors regarding restrictions and accommodation, although, generally speaking, Marshall also noted that doctors might not have sufficient knowledge about the employee’s job. In this case, the prognosis letter attached BP’s job description.
On May 26, Laviolette gave BP the prognosis letter to give to her doctor. She told BP: “she really needs to think about if she can make it in this job because she not doing it right now [sic]. As well, in her view, BP “had a lot of excuses about her attendance, ear infection, bladder infection & now abscessed tooth [sic].” The prognosis letter, dated May 26, 2008, read, in part:
Dear BP:
As you are aware, you have been absent for a significant number of shifts over the past 8.42 years:
2000 – 40.65 days absent
2001 – 39.73 days absent
2002 – 12.86 days absent
2003 – 26.12 days absent
2004 – 49.0 days absent (26 occasions)
2005 – 17.73 days absent (8 occasions)(5 month work stoppage)
2006 – 129.62 days absent (15 occasions)(106 days one absence)
2007 – 5 days absent (3 occasions)(9 month Leave of absence)
2008 – 18 days absent year to date (7 occasions)
This number of shifts missed represents 20% absenteeism in 2004, 23% in 2005,
49% in 2006, and 32% in 2007 compared to a team average of 7-8% absenteeism
over the same time frame.
The Company’s concern with this level of absenteeism has been outlined in a number of letters issued to you from October 24, 2002 to the present. We continue to have concerns with your level of absenteeism and, based on your attendance record over the past several years, have cause to question whether you are capable of regular attendance.
By way of this letter, Telus is requesting that you present your attending physician with this letter as well as a copy of your attached attendance record covering your dates of sick absence from 2000 to the present. In the context of your past record of attendance, we require that your physician provide responses to the following questions:
…
6. Does the employee have any current medical limitations? If yes, please elaborate. Please include specific details of any requirements for additional breaks from work
7. In your medical opinion, is the employee capable of attending work
regularly in the foreseeable future, or is a similar attendance pattern likely to persist?
I have also attached a description of your job duties for your practitioner’s review. Please ensure that your practitioner’s responses to the above questions, along with a signed and stamped copy of this letter, are returned to Telus Health Services confidential fax: 604-432-9456. All medical information provided is confidential and will be maintained by Telus Corporate Health Services in accordance with their existing standards. The requested information must be submitted to Health Services no later than end of day June 5, 2008,
Regards,
Brenda Laviolette
Team Manager- Retail Operator Service [Emphasis added]
Laviolette gave BP the letter and advised Moore and her director the following day. When she met with BP on May 26, she reviewed the prognosis letter with her, and told her that “we needed to have another look at her accommodation as she is not meeting the requirements of her position, in attendance as well as adherence, make busy & wkca” (similar to “make busy,” stopping calls to her station). Laviolette reminded BP that she had already received seven attendance letters prior to going on leave in 2006. Laviolette noted that BP acknowledged her attendance had been poor since March due to ear and bladder infections, and told Laviolette she wanted to change doctors. However, she told her, she was not meeting job requirements. BP said she was not sure if she would be able to see her doctor before June 5. Laviolette asked her to call her and let her know when her appointment was. My notes suggest that Laviolette said she did not give her a new PAF. BP said she took both the letter and a PAF. Moore was of the view that she was provided with a PAF, which, as well, is consistent with Part One of the PAF, which is to be completed by the manager. Laviolette agreed she did not have any personal knowledge of the information between Health Services and BP’s doctor.
BP recalled that Laviolette told her to bring the letter back to her, not Health Services. I do not accept that. It is not consistent with the letter itself or the subsequent events. On June 17, Laviolette asked BP if she had “sent in her doctors forms, she said she forgot them at home.” Laviolette asked her to fax them the following night when she came to work. However, BP was not at work the following night. On June 19, 2008, Laviolette again inquired about the medical documentation. BP said that she had the forms, outside in her truck. Laviolette asked her to get the forms and fax them to Health Services. On June 19, 2008, Laviolette emailed Moore that BP “just faxed the PAF to Health Services.” Laviolette asked BP “if her doctor answered the questions too, she said no that the union told her not to do that as it was not an approved form….” Her doctor’s notes contain a reference to the letter not being an “approved form.” BP said she did not recall telling the doctor that. BP had contacted Ruggles, a friend and union local president, who told her to put the information on the PAF. According to BP, Ruggles did not like the prognosis letter, and, in any event, seems to have been of the opinion that the information requested is the same as on the PAF. The following day, Laviolette emailed Moore, reporting that she had given the prognosis letter to BP. In my view, there is a qualitative difference between a PAF and the prognosis letter. The prognosis letter specifically sought to address the medical information required in the context of BP’s absences and her job description.
Tamara Marshall, Business Representative (March 2007), acting Secretary Treasurer of the union and longtime shop steward, testified for the union. One of her responsibilities is to assist “troubled” members, including some with mental health issues. She had only peripheral involvement in BP’s file and was not familiar with the particulars. She would usually become aware of a prognosis letter through a telephone call from a member as to how to respond to it. She never advised members not to have it completed, nor did, as far as she was aware, any of her colleagues, and there was no union policy not to complete the letter. In her view, however, the PAF was “what could be asked for,” and that she had heard business representatives say: “you only get the PAF.” She was not familiar with the views of all her colleagues, and could not say if they would refuse to provide other than the PAF. Marshall never received a call from BP or Pawluk about medical information. Ruggles did not testify and it is, in my view, reasonable to draw an adverse inference from that, and I am satisfied that the union local president advised BP not to provide the information requested by the employer to facilitate accommodation.
The union questioned Moore for failing to seek assistance from the union to obtain information from BP’s doctors, which she conceded was an option. She explained it was because the union, at that point, had advised the employee not to provide the information. Moore also agreed that she, Nemetz and others in Labour Relations had had sought the assistance of union representatives, including Marshall, regarding other employees on a few occasions. Marshall said that Labour Relations had contacted her on “numerous” occasions, during her term as union representative, to assist with “troubled” members. She agreed that her contacts with Moore “at times” had related to urgent situations, where there was a safety concern – in one instance, where a member had made “suicide like” comments in the work place.
Prior to the 2005 collective agreement, there was a joint union-management committee dealing with accommodation. In the union’s view, that process worked well. Marshall said she had a conversation with Nemetz in June 2008 regarding the usefulness of the joint committee. The union’s concern was that there were members “falling though the cracks” on accommodation because they did not know where to go. She admitted that probably would not apply to members already being accommodated. She recalled that Nemetz had told her “Telus was not interested” in the committee. She did not serve on the committee, and had no direct knowledge how it worked. She agreed that Nemetz may have told her that the new system worked well. The employer’s view was that the new system was efficient and worked well. Article 25 in the collective agreement, which provides for transfers and change of assignments, including for accommodation purposes, eliminated the need for the committee.
BP saw her physician on June 12 and 13. BP stated that she did not see the PAF, signed June 13, stamped received by Health Services June 20. The diagnosis, consistent with previous PAF’s, was “anxiety/depression” and opined that BP was fit to return to work as of October 2007 if Telus “continues with current accommodations.” She was “… working regular duties full time since October.” Unlike PAFs going back to 2001, BP did not sign the authorization to release information to if Telus “continues with current accommodations.” and obtain further information. Due to the confidentiality of medical records, management and Labour Relations did not know that at the time. BP explained that she forgot. It is not unlikely that she was showing some resistance to her employer based on her strong and entrenched adverse perceptions of her employer (see below).
In the performance review for January through June 2008, Laviolette noted that BP’s absence rate was 14.41%. She was off sick on 20 days. Laviolette stated that BP’s “attendance is unacceptable and must show in immediate improvement.” According to Laviolette, the decision to terminate BP involved herself, her director and Moore. In early July, Laviolette discussed the situation with Moore and Diane Robinson. Laviolette noted Moore was going to be “off for the next week & the we will discuss further with [Health Services] and consider termination.” Laviolette went over the situation with Robinson, and they reviewed BP’s file for 2007-2008 attendance from her return to work. They realized that she had not returned any of the “green SP 23 sheets that she has been given after each absence.”
On August 5, 2008, Alison Biggs emailed Laviolette regarding BP, informing her that Health Services received the PAF on June 20, 2008. It provided the same diagnosis as previous. The doctor wrote BP was “currently at work since October 2007” and “continue with current accommodations.” Biggs confirmed that Laviolette had continued to provide Monday through Friday shifts with five-minute breaks every hour. Health Services noted that Laviolette had advised that the BP had “missed a lot of time since her full-time return last year.” With the information provided, Health Services was unable to support days missed from October 2007 to August 2008. The “expectation is she would to be capable of working full-time with the accommodation of Mon–Fri and appropriate break times.” Biggs inquired: “let me know if you require any more information…” In Laviolette’s view, BP was capable of working her own position at that time with the accommodation in place.
On September 11, 2008, BP got two more letters. One requested that she provide medical documentation, which had not been provided, for her absence on August 7, 2008, when she was off, apparently due to migraine. The letter restated the company’s position that failure to provide satisfactory medical documentation within five calendar days of the first date of absence could result in further discipline up to and including termination, copy to Health Services and the union. Laviolette copied the letter to Health Services so they knew information had been requested. Biggs received a copy of the letter. She emailed Laviolette that Health Services did not have a new PAF on file, and that the medical information in BP’s file indicated that she should be able to work a regular full-time work. The September 11 letter caused Health Services to opened a new file for BP. BP said, she “felt kind of harassed” by the letter. She claimed that she had left a doctor’s note on Laviolette’s desk for the August absence but did not know if she received it. In cross, however, she was not sure whether she actually left the note on the desk or if she forgot. There is no medical record to support that she went to her doctor around the time in question, and I consider it more likely that she did not actually leave a note on Laviolette’s desk. Laviolette said, she did not get the note. After September 11, BP was sick due to sinus pain and congestion and urinary tract infection, and missed a number of days at work.
In the period leading up to the termination of BP, Moore had a number of conversations with Laviolette, her director, and Mathew Walter, director, Labour Relations, regarding BP. Moore had reviewed her file as far back as 1999 at great length and discussed with Walter what to do as there had been no improvement in BP’s absenteeism. From what BP had told Laviolette, Moore knew that she suffered from depression. As well, from the information provided by her doctors, she was of the view that Telus had provided the accommodation identified. BP had refused to provide the prognosis letter on advice of the union. On August 9, Moore emailed Biggs in Health Services, requesting further information: “we’re close to terminating this employee so I want to make sure we have the loopholes closed.” She asked if sending a request to BP’ doctors for more information was an option. Biggs responded on August 25, having been away, that she thought that was a “good idea.” Ultimately, Moore decided against such a request in the later part of September. There had been no response to the September 11 letter, BP’s refusal to provide the prognosis letter, and the June PAF had provided nothing new – she “didn’t feel that anything could be gained.” As well, in Moore from Moore’s perspective, the union was aware of the situation. On September 18, 2007, Moore emailed Cathy Buckoll, Health Services, to ascertain if “we have a new PAF and what it indicates?” Moore again raised the question of permission to contact BP’s physician. Ultimately, there was no response to that request from Health Services. The last PAF indicated that she should be able to maintain regular attendance as long as accommodation requirements were met. Biggs responded to Moore and Laviolette – “we do not have a new PAF on file – medical on file indicates she should be able to sustain regular full time work with accommodations.” Laviolette did not know what PAF was on file, or if Health Services communicated with BP’s doctor regarding any link between BP’s medical condition and her absences.
The medical file of BP’s family physician was part of the evidence before me. From the end of October 2007, just before she returned to regular full-time employment, and October 2008, her termination, she had several consultations. As mentioned earlier, for the October 2007 consultation, the doctor noted that “things were going well,” although she had some eye problems. In February and June 2008, she came in for renewal of her anti-depressant prescriptions, which apparently “are working well.” In March, April, May and June, she saw the doctor for cold remedies, sinus infection and dental pain. On June 13, she saw her doctor for the FAF (above). With the exception of a consultation on August 18, where complained of “frequency of panic attacks, likely related to work pressure” for a two week period, she saw her doctor for such things as thyroid prescription, and sinus pain and congestion.
Moore’s discussions with Laviolette included the impact of BP’s absenteeism on the Operator Services department. Laviolette’s view was that other employees were upset because BP did not attend work regularly without management doing anything. When the decision was made to terminate, October 2, there was no data concerning the operational impact of BP’s absences. BP’s absences had an operational impact, despite the routing of calls via Telus’ computer system to other operators. Moore explained that scheduling is based on employees being available to work, although she could not testify as to the existence and degree of the operational impact. In her view, any absence creates a cost or impact, in terms of distribution of work to other employees (who have to work harder) or employees have to come in.
On October 2, 2008, Laviolette noted that BP had not been at work for one week, and she called Moore for advice. Laviolette was ready to proceed with the termination of BP, and prepared the termination letter for BP’s return to work. The decision to terminate was made by the business unit, but Moore agreed that it was appropriate. Laviolette prepared the letter on October 2. Moore and others involved in the decision, including Vile and Walter, had considered the question of undue hardship multiple times in conversations in the time leading up to the termination – she said “we don’t terminate a 25 year employee lightly.” On October 3, 2008, Laviolette advised Biggs and Buckoll that BP had been off work sick since September 25 and still had not returned to work. Laviolette inquired if any further documentation from her doctor, requested in the September 11 letter, had been received. The same day, Biggs responded that Health Services had not received a PAF. BP called in sick the next three days. The termination letter was ready Monday, October 6.
When Laviolette came to work on October 8, there was a grievance on her desk requesting a grievance meeting, stating that BP had been “facing discrimination from the company based on her disability & union activity.” The union wanted all disciplinary letters withdrawn, and punitive and exemplary damages. Laviolette called Moore for advice. She suggested not to schedule the meeting.
Laviolette testified that she had not received any doctor’s note or any new PAF requiring new accommodation. She had provided any accommodation BP’s doctors had asked for. She did not expect the same attendance from BP as she did from other operators, and expected her absences to be higher. BP had had more discussions and letters than other employees, and that she had repeated some steps in the AMP before moving on to the next step and added extra discussions. In her view the Attendance Management Program was not a rigid approach but more like a guideline. Despite the additional discussions and letters, BP was still not able to attend work on a regular basis. As of October 8, 2008, Laviolette agreed she had not personally requested information regarding the affect of the medical condition. Health Services “don’t provide me with details.” She did not know what information Health Services had at the time, other than what had been provided. In cross-examination, while she agreed that she did not turn her mind to disability and accommodation at the point of termination, in my view, fairly assessed, those considerations are evident in the documentation in the time leading up to termination. It is important to appreciate that, while the decision to terminate rested with the business unit, Operator Services, it was not a decision taken by the manager, Laviolette, in isolation. Getting to that point involved more senior managers, including Laviolette’s superior as well as the director of Labour relations. I am also of the view that those considerations were included in the discussions involving Moore. She said that accommodation had been discussed multiple times. At the point of termination, Telus view was that it had provided the accommodation requested and that it had reached the point of undue hardship.
Prior to BP’s dismissal, Laviolette did not consider whether she could be successful in any other classification. In her view, BP could perform the duties of her own job. Laviolette was not aware BP had an grievance regarding an unsuccessful application for a job as customer care representative. Moore testified that the operator position is an entry-level position, at least in terms of complexity. She also explained that Telus prior to the 2005 collective agreement had jobs that were less complex, janitorial, building services, mail room and coin collection, that were used for accommodation. These positions had been contracted out. However, there is also no suggestion that BP, the Union, or indeed Health Services, ever suggested that there was work that BP could successfully perform. The customer care representative position was, on the evidence of Pawluk, Moore and Laviolette, much more demanding, including sales expectations and longer calls with customers (30-40 minutes per call). On the evidence before me, it is not likely that there was any position or work that BP could perform. I also accept that she was capable of performing the duties of her own job.
The termination letter was presented to BP when she came to work. Another manager and a TWU representative attended the termination meeting. Laviolette explained that BP had been advised multiple times that she needed to improve her attendance, and that there had been no improvement. She stated that Telus had met its accommodation requirements without improvement in BP’s attendance and terminated her employment based on her inability to attend work regularly.
After the termination, BP went on EI, regular and medical, and subsequently on CPP Disability. Her application approved retroactively to 2009.
About a month after the termination she saw her psychiatrist. According to a Psychiatric Assessment, November 17, 2008, she felt that “the Effexor and Willbutin are effective in controlling her anxiety and depression.” She did not recall specifically what she told the doctor but explained that she “went along with what he said.” He asked if they were working “OK” and she said, she “thought so.” She mentioned that she had started thyroid medication, and she did not know what was working. She apparently told the psychiatrist that the union was working for her to get reinstatement with modified duties. She found it “childish” that the employer required her to sit at her desk for long periods of time. The psychiatrist recommended that she continue with the medications and did not believe that she needed to see a psychiatrist on a routine basis.
BP felt that she termination had a major impact. She thought she had “failed in life” and reported suicidal thoughts to a mental health social worker at the end of January 2009. Between November 2008 and July 2009, when she complained of depression, she saw her family physician mostly for prescription refills and regular ailments, such as sinusitis, eye trouble and gingivitis, and a mammogram.
C. Post-Termination Expert Medical Evidence
Dr. Hashman provided a report, dated June 21, 2010, which was entered into evidence at the hearing. He interviewed BP in Vancouver, British Columbia, on May 27, 2010, pursuant to an order that I issued in May 2010, that BP attend for an Independent Medical Examination.
Dr. Mallavarapu is a psychiatrist in private practice. He saw BP on April 25, 2010. He wrote a report, which was also entered into evidence. Both psychiatrists reviewed BP’s medical and personal history.
There are a number of common features in the opinions, for example, both diagnose major depression and panic disorder resulting in serious impairment, but there are also significant differences, notably the diagnosis of bipolar II disorder by Dr. Mallavarapu in his report. Both are of the view that her prognosis for future regular attendance at work is “guarded,” i.e., “poor.” The following highlights the medical expert evidence before me.
Dr. Hashman’s report provided a brief summary of BP psychiatric history:
Past psychiatric history reveals prior treatment under the care of three psychiatrists including Dr. Brink, Dr. Umar and Dr. Frye. BP has also received long-term counseling at the local mental health clinic in Prince George. She has never been hospitalized for mental health problems. She reported prior trials of antidepressant medications including Imipramine, Desipramine, Manerix, Trazodone, Prozac and Paxi resulting in side-effects or lack of sustained effect. She described the use of Effexor and Wellbutrin as moderately helpful but that she remains stress intolerant. She has not been treated with any mood stabilizers or antipsychotic medications. BP described a history of chronic low-grade depression and longstanding anxiety in the context of social situations. Furthermore she reported recurrent episodes of major depression dating back to her late teens, which appeared to increase in severity, frequency and duration over the years. She also noticed difficulties with panic attacks with associated agoraphobia, which has substantially diminished with a decrease in social demands. Her mental health difficulties have been associated with three lengthy absences from the work place including six months in the mid-1990’s, six months in 1998 and fifteen months in 2006-2007. She also reported longstanding difficulties with significant absenteeism, which she related to difficulty coping with any health issues and perceived stress/demands in the work place, which heightened after 2000 with the transition from B.C.TEL to TELUS.
Both psychiatrists noted that BP has suffered from a variety of mental and physical conditions from early on in her life. Dr. Hashman’s report described:
BP reported a number of physical conditions including hypothyroidism, recurrent cystitis, irritable bowel syndrome, TMJ dysfunction, endometriosis, polycystic ovaries and lactose intolerance. She denied that these conditions were acutely disabling in nature. She did however find that she was unable to cope with these conditions in combination with depression and her perceived adversities in the work place resulting in significant absenteeism. Consequently, she advised that she would compulsively avoid work when she suffered minor ailments as she was afraid she would not meet work expectations.
A major feature of Dr. Mallavarapu’s diagnosis was bipolar II disorder:
Ms. Bonita Palmer is suffering from multiple emotional and physical problems. Her emotional problems include bipolar disorder II. BP is going through a major depressive disorder with seasonal exacerbation through wintertime. BP is also suffering from an anxiety disorder and panic disorder. BP is also suffering from dyslexia. BP has been suffering from these emotional problems on and off since she was a child. Her symptoms became disabling by the time she was a teenager. Over the past 30 years, BP suffered frequent recurrence of her mood disorder and anxiety disorder symptoms. BP also suffered from hypothyroidism, endometriosis, PMS and PMDD.
Hypothyroidism could cause cognitive difficulties. Successful treatment of hypothyroidism may not reverse the cognitive difficulties.
Often PMS and PMDD complicate the treatment outcome for bipolar disorder and anxiety disorder.
In cross-examination, however, Dr. Mallavarapu conceded that BP did not meet the criteria for bipolar II disorder based on DSM IV, and explained that it was a “more complex case.” In cross-examination, he proposed to amend the diagnosis to bipolar soft spectrum disorder. I would agree that the DSM is not determinative of the issue. It is a tool or a guideline, albeit an important one. However, it is significant to me that Dr. Mallavarapu changed (or clarified, in the union’s submission) his expert opinion in cross-examination on such a material issue. It is also noteworthy that in BP’s lengthy psychiatric history, none of the treating psychiatrists diagnosed the condition.
Dr. Hashman did not agree that the bipolar II disorder was appropriate in BP’s case “as there does not appear to be evidence by history or background documents of hypomania (abnormally elevated moods).” He diagnosed a major depressive disorder superimposed on dysthymic disorder:
On the basis of my interview and review of extensive background materials, it is my impression that the primary diagnosis from a psychiatric perspective is that of a major depressive disorder, recurrent, severe without psychotic features superimposed upon a dysthymic disorder, early onset. That is to say, BP presents with a history of chronic low-grade depression and anxiety dating back to childhood with superimposed recurrent episodes of major depression since her late teens which have increased in frequency, severity and duration over the years. She reports that her depressive symptoms have increased in intensity from 2005 until 2008 and that this has resulted in a decline in her work performance. She claims that her mood deteriorated further following her termination from the work place in October 2008. Currently, despite treatment with multiple trials of antidepressant medications and extended counseling, BP reported ongoing depressive symptoms including a depressed mood, a lack of interest in activities, a fluctuating appetite, insomnia, poor energy, social withdrawal, amotivation, poor self-esteem, subjective impairment in concentration and memory and thoughts of hopelessness and suicide.
In Dr. Hashman’s opinion, dysthymia, chronic low-grade depression, is not disabling on its own. The difference between dysthymia and major depression is the difference between the “smoldering embers” and a “bonfire.” BP had major acute depressive episodes, characterized by depression each day and a lack of interest in the most activities for two or more weeks. Symptoms include fluctuations in appetite and sleep, impairment of concentration, impairment of memory, lack of energy, and may include suicidal thoughts. A major depressive episode superimposed upon dysthymia is a “double depression,” with a greater level of depression. Episodes of major depression are likely to become more severe, frequent and longer in duration. Depression can be treated with medication. A person who has had one episode of major depression is 50% more likely to have a second episode; a person who has had a second episode, is 90% more likely to have a third; and so on. In BP’s case, Dr. Hashman stated that there was 95 — 100% chance of a further episode of major depression.
Dr Hashman also diagnosed:
… panic disorder with agoraphobia, which appears to be in relative remission with decreased social demands since being off work. In this regard BP reported longstanding difficulties with panic attacks including palpitations, shortness of breath, a fear of losing control and dying and associated agoraphobia. A review of other acute disturbances of mood, anxiety and psychosis was unremarkable. Specifically, BP denied symptoms of hypomania (abnormally elevated mood) which were also absent upon a detailed review of background documents.
He also noted that BP:
… described longstanding perceptions of adversity with her employer which heightened following the transition from B.C.TEL to TELUS and further worsened upon her return to work after a strike in 2005 as she was unable to put her angry feelings behind her. She acknowledged that during her last three to five years of employment, she had difficulty maintaining herself on a regular basis in the work place as it was harder to manage her duties, keep pace and understand her training. Despite accommodations of regular shifts with frequent breaks and her family physician’s endorsement of her fitness to remain at work with accommodations, as of June 2008 I understand there were ongoing concerns with repeated absences. Currently, BP unequivocally advised that she did not feel she could cope with a return to any work environment in the future. Prior to her departure from the work place, she noted, “It was all I could do not to tell off customers that would swear at me or tell me off, or if a situation arose with a manager”. ….
In the report he described BP’s views of her employer:
BP, in describing her employer stated, “I think they are a bunch of Nazis … they are very rigid … they challenge everything … they try to get away with a lot of stuff… I feel they want us to work like third world people … I feel the situation at work is abusive … I feel they would take more advantage if they could … they pay lip service to positive things”. …. Negatives of her employment include pressure, an inability to speak her mind and not being treated with dignity and respect.…. In regard to future employment, she stated, “I feel like after my experience with Telus I could not cope with returning to work in any environment”. She felt unable to struggle with ongoing difficulties with depression and attempting to work at the same time. She perceived that her depression has worsened since 2005 and that it has detrimentally affected her work skills. She stated, “It was all I could do not to tell off customers that would swear at me or tell me off or if a situation arose with a manager”. She advised that over the past three to five years she had difficulty maintaining herself on a regular basis in the work place. She had a harder time managing her duties, coping, keeping pace and understanding training.
Dr. Hashman testified that it is important to differentiate between medical barriers and non-medical barriers. If the problem is of a medical nature, there is no occupational solution. The converse holds true as well. Where the diagnosis is a significant depression, the workplace does not matter. Dr. Hashman testified that BP held very strong negative feelings with respect to Telus management, and that her perceptions were entrenched and extremely difficult to change.
Dr.Hashman also diagnosed a avoidant personality disorder:
Underlying acute mental health concerns and occupational issues, BP also presents with a chronic maladaptive pattern of functioning diagnosed as an avoidant personality disorder.
Dr. Mallavarapu opined “she remains disabled to return to work:”
BP suffered recurrence of her bipolar disorder type II and anxiety disorder on many occasions over the past 35 years. The very fact that she had these symptoms over a prolonged period of time and she suffered recurrence of her condition many times makes the prognosis for remission and functional recovery guarded.
BP continues to suffer from anxiety and mood swings. She remains disabled to return to work.
Dr. Hashman agreed with respect to the prognosis:
Given the duration, severity and treatment resistance of BP’s condition, I concur with the opinion of Dr. Mallavarapu that BP’s prognosis for remission and functional recovery must be considered guarded regardless of further treatment interventions.
In Dr. Hashman’s view, BP presented with a number of symptoms, despite aggressive treatments. Dr. Hashman noted that BP had seen three psychiatrists for depression over the years, had been in long-term counseling, and tried a number of medications. Some have had side effects and no impact. As far as other antidepressant medications, Dr. Hashman opined that there “comes a point of diminishing returns.” In his view, she was in the position of “diminishing returns.” Having tried the five antidepressants of “different class and family,” he did not, in the result, think it likely something that could change in terms of successful treatment.
However, Dr. Mallavarapu’s report, somewhat contradictory to the suggestion that she was disabled from work, seemed to suggest the possibility of a return to work:
Treatment of bipolar disorder with antidepressant medications often make the mood swings worse by speeding up the cycling of mood. This could have been one of the problems that Ms Palmer experienced since she started to take antidepressant medications.
I would definitely recommend a mood stabilizer along with Wellbutrin XL 150-300 mg a day. …
Successful treatment of her mood disorder and anxiety disorder should improve her chances of attendance at work.
…
Based on her present mental state it would be inappropriate for BP to return to her previous employment. She should consider return to a work situation that does not demand constant attention and monitoring.
A gradual return to work and appropriate workplace accommodations may facilitate her successful return to work.
As I am not inclined to accept his diagnosis, I also do not accept the treatment options that follow. Dr. Mallavarapu recognized that it would be “inappropriate” for BP to return to her “previous employment” as an operator. That position demands “constant attention and monitoring.” The report leaves the meaning of “gradual return to work” and “appropriate workplace accommodations” unexplored. In any event, in his testimony, Dr. Mallavarapu agreed that BP was unlikely to be able to return to work.
Dr. Hashman disagreed with Dr. Mallavarapu’s recommendation:
… I disagree with Dr. Mallavarapu’s recommendation for consideration of a return to work to a position which is less demanding of attention and monitoring considering the chronicity, severity and treatment resistance of BP’s condition which has left her unable to manage basic daily activities much less consider a return to any form of employment. I disagree with Dr. Mallavarapu’s suggestion of a trial of a mood stabilizer or antipsychotic given the absence of symptoms indicative of an abnormally elevated mood or psychotic disturbance. …
Dr. Hashman specifically addressed the issues as to the prognosis at the time of termination of employment. Dysthymia, chronic low-grade depression, is not disabling on its own. BP was not suffering from acute depression in October 2008, when she was terminated. At that time, however, the prospects for regular attendance at work in all of the circumstances were not good.
Upon considering my above noted opinions, it appears that BP’s prognosis for regular and consistent attendance in the work place at the time of her termination on October 08, 2008 was guarded. BP had longstanding difficulties with absenteeism prior to her termination and despite being found fit to continue at work with accommodation since October 2007, she continued to be repeatedly absent. This was likely related to a combination of her longstanding mood and anxiety symptoms, personality dysfunction with limited coping strategies and increasing perceptions of adversity in the work place following the transition from B.C.TEL to TELUS and after her return to work following a strike. Consequently, BP acknowledged that when she had a minor ailment (flu or cold) she would compulsively avoid attending work as she felt that she would not be able to meet expectations.
As Dr. Hashman and others put it: “the past mirrors the future.” He emphasized BP’s “avoidant personality disorder.” On of BP’s treating psychiatrists in 1996 observed that sick leaves were not beneficial to BP, because they facilitated her avoidance disorder.
Dr. Mallavarapu related BP’s absences to her conditions: “It is probable that BP’s absence [sic.] from her work is related to her psychiatric and medical problems.” With all respect, this does not significantly inform me. Dr. Mallavarapu acknowledged that the “co-morbidities” contributed to BP’s absenteeism. Dr. Hashman agreed, broadly speaking, that BP’s perceived stressors from work could adversely affect her mental health. He accepted that monitoring was “intuitively not good,” but if done properly could assist with her avoidance issues. He also noted that her perceptions of adversity in the work place were well entrenched and difficult to change.
Dr. Mallavarapu’s view was that “BP felt very depressed, sad, unhappy, anxious, worried, withdrawn and suicidal from October 2008 until December 2008,” and opined:
BP suffered from an exacerbation of major depressive disorder and anxiety disorder after she was fired from her work in October 2008. BP experienced an increase in her symptoms of sadness, anxiety, suicidal ideation, insomnia and depair.
Dr. Hashman disagreed:
… with Dr. Mallavarapu’s suggestion that BP’s major depressive disorder and anxiety disorder were exacerbated after she was fired from work in October 2008 as the contemporaneous consultation by Dr. Frye in November 2008 clearly indicated that her anxiety and depressive symptoms were under control with treatment and that she was seeking counseling in the context of increased perceptions of adversity in the work place.
Dr. Hashman disagreed that BP’s major depressive disorder was exacerbated after the dismissal. When BP saw her psychiatrist in November 2008, she felt that the symptoms were under control and there were other concerns. He agreed that the psychiatrist’s report was the basis for his opinion. He noted that he “wouldn’t imagine [the termination] having a positive effect.” When Dr. Hashman saw her in May 2010, she was depressed. She had a significant episode of major depression in May 2009.
Dr. Hashman summarized as follows:
BP’s prognosis to achieve regular and consistent attendance in the work place in the future also remains guarded. She currently presents with severe depressive symptoms, co-morbid anxiety symptoms, an avoidant personality disorder and ongoing perceptions of adversity of the work place. Given her condition, BP clearly indicated that she did not expect to be able to return to work in any capacity in the future. Furthermore, given the duration, severity and treatment resistance of her condition despite multiple trials of medication as well as counseling, it appears highly unlikely that further treatment interventions will result in a meaningful impact on diminishing her symptoms or allowing for significant functional restoration. It does not appear that BP could even manage part-time modified duties as she appears to be barely able to cope with very limited activities of daily living in which she remains housebound six out of seven days per week.
I accept Dr. Hashman’s medical opinions. As such, BP’s prognosis to achieve regular and consistent attendance in the work place in the future were guarded, at the time of the hearing and in October 2008. He questions even the ability of BP to work on a part-time basis. On the assumption that Dr. Mallavarapu’s opinion is correct, then BP presents a “more complex case,” including consideration of the co-morbidities, and, therefore, more “complex and difficult treatment,” her prognosis for regular attendance is likely poorer. He agreed that if BP had soft spectrum disorder for 35 years, the “chances of remission were not good” and could not say which medications would work.
I conclude on the on the medical evidence that it is unlikely that BP would be able to return to work.
D. Submissions
The Employer’s case is framed by the decision by the Supreme Court of Canada in Hydro-Quebec, [2008] 2 S.C.R. 561, where the Court upheld the dismissal for excessive innocent absenteeism of an employee, who had been accommodated, but remained “unable to work for the reasonably foreseeable future.” The employer tolerated BP’s excessive absenteeism, assessed “globally,” over 14 years, and accommodated her medical condition(s), chronic low-grade depression (dysthymia) and episodes of major depression, first temporarily and later permanently, as requested by her physicians in the PAF’s, which the employer was entitled to rely upon. As well, BP suffered from a number of co-morbidities, including an avoidant personality disorder. The employer satisfied the duty to accommodate (British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [[1999] 3 S.C.R. 3). At the time of termination, based on the past attendance record and accommodation, the employer was entitled to draw the inference that regular attendance in the future was unlikely. One further assessment would not change the obvious reality that BP was incapable of regular attendance (David Thompson Health Region v. United Nurses of Alberta, Local, [2009] A.G.A.A. No. 11 (Joliffe)). The duty to accommodate ends when the employee is no longer able to meet the fundamental obligation under the employment contract, attendance at work: Sault Area Hospital v. CAW-Canada, Local 1120, [2010] O.L.A.A. No. 174 (Harris).
BP was warned verbally and in writing numerous times that her employment was in jeopardy unless her attendance improved. Monitoring employees frequently absent is a proper requirement (Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362). The employer’s AMP, it was applied properly, patiently and not in a rigid manner (Coast Mountain Bus Company Ltd. v. National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada), Local 111, 2010 BCCA 447). The medical experts agree that BP was likely incapable of attending work regularly in the future, and, moreover, successful treatment unlikely (Telus v. Telecommunication Workers Union (Groat Grievance), [2004] C.L.A.D. No. 384 (MacIntyre). The union failed to show improved prospects for future attendance (Telus v. Telecommunications Workers Union (Madigan Grievance), [2007] C.L.A.D. No. 481 (Power), Telus Communications Inc. v. Telecommunications Workers Union (LN Grievance), September 28, 2007, unreported (Beattie)). The employer satisfied the test for termination for innocent absenteeism (Telus Communications Inc. v. Telecommunications Workers Union (Archibald Grievance), August 11, 2008, unreported (Brown), Telus Communications Inc. v. Telecommunications Workers Union (Harris Grievance), August 19, 2008, unreported (Brown), Alberta v. Alberta Union of Provincial Employees (Gregoire Grievance), [2008] A.G.A.A. No. 35 (Sims), International Brotherhood of Electrical Workers v. Telus Communications Inc. (May Grievance), [2000] C.L.A.D. No. 127 (Beattie), AirBC Ltd. v. Canadian Airline Dispatchers Assn., [1995] C.L.A.D. No. 1168 (McPhillips), Westmin Resources Ltd. and Canadian Autoworkers – CAW-Canada, Local 3019, [1996] B.C.C.A.A.A. No. 482 (Blasina)).
With respect to accommodation, BP failed to facilitate the process when she refused to provide the prognosis letter in May 2008 on advice of the union, and the grievance should be dismissed (Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hospital general de Montréal, 2007 SCJ NO. 4, Besner v. Canada (Correctional Service), [2007] F.C.J. No. 1391, Dennis v. British Columbia (Ministry of Skills, Development and Labour), [2003] B.C.H.R.T.D. No. 168). As well, at the time of termination, BP was fit for work with accommodation, and she was able to perform the duties of her job. The employer was not required explore other positions (Sault Area Hospital, Telus (Harris Grievance)). In any event, there was no other position less demanding.
The union argued that the decision in Hydro-Quebec did not overturn the principles of the duty to accommodate. BP’s termination was contrary to the collective agreement and the Canadian Human Rights Act. BP’s absences, which were beyond her control, in the context of her entire employment were not so extreme that her employment was frustrated (Massey-Ferguson Ltd. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, [1969] O.L.A.A. No. 2 (Weiler)). There is a difference between short and long term absences, the former being more disruptive to the operations (Canadian Union of Postal Workers v. Canada Post Corp., [2004] C.L.A.D. No. 510 (Christie). Telus had no difficulty replacing BP when she was absent. BP’s absences varied during her employment, and were, in part, linked with the employer’s lack of accommodation. The onus is on the employer to prove that they were excessive (Southern Railway of British Columbia and Independent Canadian Transit Union, Local 7, [1998] B.C.C.A.A.A. No. 31 (Germaine)). There was little evidence of the corporate absence “norms,” or that the Grievor was told about any attendance standards.
While the medical evidence was in the hands of Health Services, and not line management, the employer had actual knowledge of her (major) depression from early on in the employment relationship from the PAF’s. The June 2008 PAF indicated her medical condition as “anxiety/depression.” Her disability caused or contributed to her absences and the termination, therefore, constitutes prima facie discrimination, shifting the onus on the employer to establish a bona fide occupational requirement (Tolko Industries Ltd. (Armstrong Division) v. United Steelworkers of America, Local 1-423, [2005] B.C.C.A.A.A. No. 176 (Kinzie), Senyk v. WFG Agency Network (B.C.) Inc., [2008] B.C.H.R.T.D. No. 376). In Canada Post, it was not accommodation to require a grievor to miss no more work than the average for his group. BP’s termination was improperly predicated on her prospects for future attendance was based on her past attendance, including absences related to her disability (Desormeaux v. Ottawa-Carleton Regional Transit Commission, [2003] C.H.R.D. No. 1).
The employer’s application of the AMP constituted a pattern of harassment and callous disregard for her disability – emphasizing attendance management, deemphasizing accommodation. The union urges me to adopt the analysis in CAW Local 111 v. Coast Mountain Bus Co., [2008] B.C.H.R.T.D. No. 52. The AMP was applied in a “tunnel vision” manner. Telus did not accommodate BP; it adopted a “claims management approach,” using PAF’s to “support” absences. Laviolette, applied the AMP “insensitively” to keep the “pressure up,” and did not seek to involve Health Services. Laviolette assumed that BP had control over her condition, “lacked motivation,” and she did not engage in any accommodation inquiry. Health Services was never asked to consider the demand of her – intensely monitored – job relative to her disability.
The duty to accommodate is both procedural and substantive (Desormeaux, Tolko Industries, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, Telus Communications Inc. v. Telecommunications Workers Union (Duguay Grievance), unreported, August 17, 2009 (Pekeles)). The employer has the responsibility to initiate the accommodation process; it is in the best position to determine accommodation (Renaud). The union was “startled” to learn that the work place accommodation policy does not apply to medical accommodation. The employer chose not to involve the union with BP’s situation, as it had in other cases. The circumstances in Duguay are similar to this case. The employer delegated the responsibility for accommodation to lower levels of management. It is not sufficient that it did what Ms. BP’s physicians requested in the PAF’s, the inquiry must go further (Tolko Industries). At the point of termination, there is no evidence that Laviolette and Moore “turned their mind” to accommodation, or followed though on BP’s failure to provide the May 2008 prognosis letter, despite Moore’s view that further medical information could be beneficial to close the “loopholes.” The employer did not take the necessary steps to make certain that everything relevant was thoroughly considered (Telus Communication Company v. Telecommunications Workers Union (Levins Grievance), January 16, 2009, unreported (McPhillips)).
Telus also failed to accommodate Ms. BP substantively up to 2008. “Tolerating” absences could constitute accommodation, unless it would result in undue hardship (Parisien v. Ottawa-Carleton Regional Transit Commission, [2003] C.H.R.D. No. 6), established through concrete as opposed to anecdotal or impressionistic evidence (Meorin). There was no evidence of financial costs to Telus. By January 2007, BP had exhausted her paid sick leave bank and her absences did not come at a financial cost. There was no direct evidence of any disruption of the collective agreement or impact on employee moral: for example, complete interchange of the workforce, transfer of calls to other locations or operators. There was no concrete evidence of actual interference with, or hampering, the employer’s operations from her absences. The employer must be flexible and avoid rigid standards (Hydro-Quebec). Hydro-Quebec does not overturn established principles (see Duguay). BP was not disabled from attending work on October 8, 2008, and could have been accommodated through relaxed attendance standards, and there is no evidence of the costs associated with replacing her during her absences (Dana Corp. v. International Assn. of Machinists and Aerospace Workers, Local 233, [2006] O.L.A.A. No. 77 (Shime)).
While Dr. Mallavarapu clarified his Bipolar II diagnosis, and substituted “soft spectrum disorder,” on the basis of DSM-IV in cross-examination, the union noted that the DSM-IV was only a guideline. The union noted that BP was treated only with anti-depressants, not mood stabilizers, and that could explain the lack of response to treatment. She got no opportunity to try. A further difference in the medical evidence was adverse effects of the termination. The union noted that a record from January 2009 by a social worker that Ms. BP was suicidal. BP testified that the termination “made it worse,” that she felt that she “thought [she] had failed.” The union invited me to find that the termination impacted on her mental health: “Today she is unable to work,” and was approved for CPP retroactively to 2009. Finally, because she lost her job, she lost her benefits and had to cut back on her medication – “she couldn’t afford it.” If she had not been terminated, she would have been able to go on LTD benefits.
The union sought BP’s reinstatement to employee status effective October 8, 2008 with wage loss compensation to the date she was accepted for CPP, allowing her to apply to Sun Life for LTD as of that date. The union also sought additional damages in the $25,000 range based on the highhanded and maliciousness of the employer’s conduct and the impact on her mental health.
In reply, the employer took issue with the union’s harassment allegations. If the employed did not warn BP, it would have failed in its obligations under the law. 14 years of poor attendance with no prospect of improvement was real evidence of a frustration of the employment relationship. Telus noted there was no evidence that BP’s absences were linked to a lack of accommodation. The employer disagreed BP could be reinstated if she could not perform her job.
E. Analysis and Decision
The general principles applicable to termination for innocent absenteeism are well settled (Sault Area Hospital (para. 44), Telus (Harris Grievance) (pp. 15-17), Telus (Archibald Grievance) (pp. 7-9), Alberta Union of Provincial Employees (para. 165-169), Telus (Groat Grievance) (para. 40), Westmin Resources Ltd. and C.A.W. Local 3019 (para. 58), Telus Communication Company (Levins Grievance) (p. 26), Atco Lumber (para. 15-19), Coquitlam (District) (para. 19-20), Dana Corp. (para. 7-8).
Arbitrator Weiler explained the “doctrine of innocent absenteeism” in the seminal 1969 case, Massey Ferguson:
4 The first basic principle is that innocent absenteeism cannot be grounds for discipline, in the sense of punishment for blameworthy conduct. It is obviously unfair to punish someone for conduct which is beyond his control and thus not his fault. However, arbitrators have agreed that, in certain very serious situations, extremely excessive absenteeism may warrant termination of the employment relationship, thus discharge in a non-punitive sense. Because the relationship is contractual, and the employer should have the right to the performance he is paying for, the employer should have the power to replace an employee on a job, notwithstanding the blamelessness of the latter. If an employee cannot report to work for reasons which are not his fault, he imposes losses on an employer who is also not at fault. To a certain extent, these kinds of losses due to innocent absenteeism must be borne by the employer. However, after a certain stage is reached, the accommodation of the legitimate interests of both employer and employee requires a power of justifiable termination in the former. [Emphasis added]
In United Rubber Workers v. Seiberling Rubber Co. of Canada Ltd. (1960), 20 L.A.C. 267, Weiler stated the need for a warning that employment was in “real jeopardy.” The onus is on the employer to justify dismissal to establish: “(a) undue absenteeism in the grievor’s past record, and, (b) that the grievor is incapable of regular attendance into the future” (United Automobile Workers, Loc. 458 v. Massey Fergusson Industries Ltd. (1972), 24 L.A.C. 344 (Shime). The test has been applied in numerous awards throughout the various jurisdictions in Canada (Air BC). On one line of authority, “the onus may shift to the employee to offer an explanation as to why the attendance record will likely improve” (para. 50, see also, for example, Telus (Madrigan). The doctrine of innocent absenteeism has not been eradicated by human rights legislation (Air BC, Tolko). However, the right to terminate is subject to the right of an individual to be free from discrimination as may be required by human rights legislation: where “an employment rule indirectly impacts on a disabled person, then an arbitrator must consider whether the grievor could be accommodated” (Air BC, para. 45).
While there may be some overlap in the analysis, it is nevertheless useful to consider the issues, first, from the standpoint of the traditional innocent absenteeism doctrine and then, second, look at the relationship between human rights requirements, accommodation and the employment relationship.
1. Excessive Absenteeism
The employer has the burden to prove that BP’s absenteeism was excessive. 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 corporate average (in brackets): 1997, 34.11% [3.69%], 1998, 52.88% [3.88%], 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 occasions; 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. I agree that there was scant evidence with respect to absenteeism in Operator Services. BP’s absenteeism was significantly above, for example, Laviolette’s. In my view, her overall absenteeism was not seriously challenged. In short, while there is some slight variation in the numbers, it is a fair characterization that BP dating back to 1994, 14 years, in both relative and absolute terms, had a considerable and significant absenteeism record.
The union argued that BP was off due to circumstances beyond her control. Dr. Malavarapu’s broad assertion – “It is probable that BP’s absence from her work is related to her psychiatric and medical problems” – is not of much assistance. Dr. Hashman’s primary diagnosis, which I accept, was a major depressive disorder with dysthymia. It may well be that her absences, during periods of major depression, could be characterized as due to circumstances beyond her control, particularly if, as Dr. Hashman testified, a major depression superimposed on dysthymia could be described as a “double depression.” Dr. Hashman and Dr. Mallavarapu agreed that BP’s mental health problems were associated with three lengthy absences in the mid-1990’s, in 1998 and in 2006-2007.
However, BP’s record also contain periods where she had fewer absences. I accept Dr. Hashman’s testimony that dystymia not disabling in itself. It is treatable like depression with medication, in BP’s case, including Effexor and Wellbutrin. She reported on a number of occasions that the medication worked well for her, including to Dr. Hashman: “She described the use of Effexor and Wellbutrin as moderately helpful but that she remains stress intolerant.” Interestingly, Dr. Mallavarapu described her condition in her mood disorder in March 2008 as starting to improve, but that she then had bladder infection and dental problems.
Aside from the depression/anxiety/dysthymia, which the employer broadly speaking knew, BP suffered from “co-morbidities,” 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.
I agree that short-term absences generally are more disruptive, and more difficult to verify, than long-term – irritating supervisors having to make adjustments and finding replacements etc. I accept the union’s submission that there was little evidence that the employer had to “work hard to replace BP when she was absent.” Operators are qualified to substitute for each other; calls are routed though the computer system to the next available operator. However, I am not persuaded that long-term absences should be excluded from the assessment. BP did have some longer absences.
However, she also had substantial number of shorter absences (as well as occasions coming to work late and/or leaving early), as is evident from the number of days off and the number of occasions: 2000, 40.65 days/25 occasions; 2001, 39.73 days/29 occasions; 2002, 12.86 days/9 occasions; 2003, 26.12 days/23 occasions; 2004 on 49.00 days/26 occasions; 2005, 17.73 days/8 occasions; 2006, 129.62 days/15 occasions; 2007, 5.00 days/3 occasions; 2008, 32.88 days/14 occasions. On Laviolette’s evidence, some of those absences appeared unpredictable.
The union argued that BP’s attendance varied over the years, and did not reach the level of “serious and excessive.” In Southern Railway, the employer failed to establish excessive absenteeism, including on workers compensation, because the “absenteeism was excessive during the only three of the last eight years. That is not a record of continuous intermittent absenteeism….” (para. 42). As well, the grievor’s record was also “rather good during four of the eight years” (para. 32), which sets it apart from the fact in the case at hand, nor was there an issue with respect to prognosis for future attendance. In Canada Post Corp., the arbitrator considered that the medical reasons for absences, short or long-term, and the prognosis for reoccurrence was “highly relevant” (para. 49). The grievor refused to provide medical records until shortly before the arbitration. The arbitrator reviewed the medical reasons for the absences in an accommodation context, and suggested that to:
“require the Grievor to miss no more time due to illness than the average for his group, when his absences are in large part due to his disability, is not to accommodate …. On the other hand, given his record, to require the Grievor to miss no more time than the average for his group due to other reasons, including other illnesses, would not constitute discrimination based on his disability” (para. 81).
The question of exclusion of short and long-term absences has been answered in McGill and Hydro-Quebec, where the Supreme Court noted: “a decision to dismiss … must necessarily be based on an assessment of the entire situation” (para. 21). Absences must be assessed globally; taking into account the entire time the employee was absent. In any event, while there were variations in absenteeism from year to year, overall, BP’s history of absenteeism, including both shorter and longer absences, was both a lengthy and substantial.
Arbitrators have accepted that an employer is entitled to rely on a grievor’s entire record of excessive absenteeism (Telus (Archibald). In Telus (Groat), for example, arbitrator MacIntyre upheld the termination of a long-term employee based on the entire record of absences. In Massey Fergusson, Shime was satisfied that the employer was entitled to look at the past attendance record. That is consistent with the “global assessment” approach approved by the Supreme Court in McGill and Hydro-Quebec.
The union argued that BP’s absenteeism was linked, in part, with the employer’s failure to accommodate. I agree with Telus that there is no evidence to support that.
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).
2. Warning that Employment was in Jeopardy
A failure on the part of the employer to warn or notify the employee “is viewed as fatal” to a termination of employment, because the employee may be lulled “into a false sense of security,” and not have the opportunity to improve attendance (Sault Area Hospital).
In my view, there can be little doubt that BP was warned, and was aware that her absenteeism was a serious concern. 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. As the employer submitted BP had more than 20 attendance discussions plus seven attendance letters. In short, it cannot be said that she was in any manner “lulled into a false sense of security,” and not have an opportunity to improve attendance. 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.
3. Prognosis for Future Attendance
With respect to the prognosis for return to work, both experts agree that BP’s current prognosis for regular attendance is poor, and that there is little prospect of a return to work.
In Dr. Hashman’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.
In Sault Area Hospital, the arbitrator considered that the absenteeism was manifestly excessive over a long period of time, despite warnings and accommodation, and that it was reasonable inference that it would likely continue:
50. Here, the excessive rate of absenteeism over such a long period, coupled with other factors such as the degree of modification of her work and workplace, leads to the reasonable inference that her excessive rate of absenteeism will continue into the future. Accordingly, I conclude from her past experience that her future attendance is not likely to improve. [Emphasis added]
The question of onus, with respect to future attendance, was not alive in the Sault Area Hospital case, “because the objective evidence is that her condition will not improve,” and, indeed, the union’s medical expert did not expect it to. He also said she was off work for many reasons (para. 51). This is not too dissimilar to the case at bar.
In my view, future regular attendance is unlikely.
4. Human Rights, Accommodation and the Employment Relationship
I agree that I have the power and responsibility, indeed duty, to apply and enforce human rights standards, including those relating to accommodation.
The first test that must be met is whether a prima facie case has been established?
I accept that BP suffered from a number of physical and mental conditions, and that she was disabled. In any event, broadly speaking, that is not in dispute. Dr. Hashman diagnosed BP with a major depressive disorder and dysthymia, although he did not consider it disabling on its own. However, while I do not doubt that episodes of major depression impacted on her ability to work, and her absences, the extent to which her depression related conditions caused the absences, is not clear. Both medical experts agree that BP suffered from a number of “co-morbidities.” The relationship between BP’s various medical conditions is complex and must include her strong and entrenched adverse perceptions of her employer. In any event, I accept, and I do no think it was seriously in dispute, that BP suffered from a disability.
In my view, as well, on the evidence, Telus had actual knowledge through Health Services that BP suffered from “depression/anxiety” or dysthymia from the PAFs from early on in her employment. Laviolette knew from BP about depression as far back as 2003. Laviolette, in turn told Moore and others. Moore acknowledged that she knew. As suggested by the union, Telus had actual knowledge of depression and dysthymia. In Tolko, arbitrator Kinzie concluded that the application of the Massey Fergusson test to an employee with a physical or mental disability, whose absenteeism was “excessive and undue,” is prima facie discriminatory, unless the employer can establish undue hardship (see also Senyk,para. 351). As observed in Desormeaux (para. 72): “it is not necessary that discriminatory considerations be the only reason for the actions.”
The decision to terminate BP was based on her entire absenteeism record, including took disability related absences, for example, related to episodes of major depression. In the result, the union has established a prima facie case, and the burden shifts to the employer to show undue hardship.
In Meiorin, the Supreme Court provided the general framework for the human rights analysis. Briefly, if the union can establish a prima facie case of discrimination, the onus shifts to Telus to establish (para. 54):
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.
Significantly, the duty to accommodate has both a substantive and a procedural aspect. Traditionally, undue hardship is considered with reference to such factors as those approved in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 and Meiorin (para. 63):
…. Among the relevant factors are the financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees.
The size of the employer’s operation may influence the assessment of whether financial cost constitutes undue hardship, or the ease with which the work force and facilities can be adapted. Safety may be relevant. These factors are not exhaustive, and must be established through concrete as opposed to anecdotal or impressionistic evidence (Meorin). The procedural aspect of the duty to accommodate includes such factors as investigation of alternatives, other less discriminatory ways of doing the job, reasons for not implementing alternatives, the necessity for single standards applicable to all employees, and consideration of whether other parties fulfilled their obligations to facilitate accommodation (Meiorin, para. 65).
In my view, questions 1 and 2 have been met in the case at hand. Attendance is a bona fide work requirement in light of the “very nature of the employment contract and the responsibility of the employer for the management of its workforce” (Honda Canada, para. 71). Absenteeism is a serious issue and legitimate concern for Telus. The 2009 AMP suggested that the total hours lost to illness, not including long-term disability, average 1.4 million hours per year, equivalent to 700 full time employees. As well, absenteeism has less tangible impacts – lost productivity, decreased morale, and increased administrative resources. I accept that the attendance requirements were implemented in an honest and good faith belief that it was necessary to the fulfillment of a legitimate work-related purpose, namely attendance. Once the legitimacy of the employer’s more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant.
In this context, I reject the notion that the conduct of the employer, and Laviolette in particular, was “malicious and highhanded.” I reject the notion that BP was harassed. While, for example, some of Laviolette’s comments could be characterized as insensitive, particularly in hindsight, given BP’s multiple medical conditions, she was also, overall, in my view, quite supportive and tried to assist her to improve attendance. Her attempts to support BP including, early on, calling her daily at home to make sure she got to work; at one point, giving her extra time; going for coffee etc. She was also supportive in the implementation of the gradual return to work plan, proposing, for example the inclusion of a consistent workweek and agreeing to consistent start times. As well, while Laviolette broadly speaking knew that BP had “depression” and told her, she was “stressed,” BP also told her at various times that her absences were due to “common” ailments such as colds, influenzas etc. I also think she and Telus, overall, applied the AMP with a reasonable degree of flexibility. Laviolette also testified, and I accept, that she expected BP’s absenteeism to be higher than other employees, and tolerated significant absenteeism over many years. In short, I do not accept that there was any maliciousness or that she behaved in a highhanded manner. In my view, that is not borne out by the evidence.
BP was warned numerous times about her attendance: Laviolette had many discussions with her over the years, more than 20, and she was given seven letters regarding her attendance. I accept that the number of letters BP was given exceeded those given to others. The AMP, as well, emphasized flexibility in the application to individual circumstances. In my view, the number of discussions and letters over seven years, 2001-2008, support that attendance requirements were applied with a degree of management discretion and flexibility. In my view, it was proper for Laviolette to warn BP of the attendance problem and the potential consequences, should it continue. As the B.C. Human Rights Tribunal summarized in Senyk:
398 There are sound reasons for requiring employers to give such a warning and provide employees with an opportunity to provide relevant medical evidence before terminating their employment. First, the warning and opportunity may open a dialogue between the employer, the employee and their medical advisors, through which the employee may be able to return to work, with or without modifications. Second, it ensures that the employer, in making termination decisions, which may have a profound effect on the employee, will do so with the best available information, which should lead to better decisions.
399 Third, even in a case where the employee is unable to return to work within a reasonable period of time, and the employer is ultimately justified in terminating their employment, the warning and opportunity to provide medical information gives the employee a valuable opportunity to be heard in respect of this crucial decision. Doing so helps to ensure that disabled employees are treated with dignity. Further, the warning may provide the employee whose employment is ultimately terminated with some opportunity to prepare themselves, which may tend to avoid or reduce the sort of negative consequences which Ms. Senyk suffered in receiving the April 7, 2006 e-mail without warning.
I do not agree that the application of the AMP constituted harassment. If BP perceived it as such, in my view, it is likely related to her views of the employer described by Dr. Hashman (above).
BP was placed in the AMP. I accept that the AMP was not applied in a rigid manner like Coast Mountain, and BP was not held to any arbitrary standard. In Coast Mountain was the program provided that employees absent more than a specified number of days in either of the following two years were subject to termination for excessive, non-culpable absenteeism (Level 3). The employees’ employment was put in jeopardy if they failed to meet attendance parameters that were set without regard to disability, based on the average absenteeism rate of the transit operators. Here, Telus tolerated excessive absenteeism over a 14-year period, and did not at any time impose a rigid, inflexible standards. Although Telus compared BP’s attendance with, for example, the corporate average, she was not at all required to meet average absenteeism rates (Canada Post, para. 81, Dana Corp., para. 21-22). In fact, she was, as submitted by the employer, “nowhere near” average rates. In Coast Mountain, the employer advanced no other ground of undue hardship, and the Court of Appeal accepted the Tribunal’s findings that “there was no evidence as to the cost of accommodating employees with disabilities” (para. 96). Here, Telus points to BP’s history of 14 year’s of excessive absenteeism.
In the case at hand, in my opinion, the real focus in on the third question in Meiorin. One of the fundamental questions in Hydro-Quebec is whether “the employee with such an illness remains unable to work for the reasonably foreseeable future”? As is evident from the above, BP remains unable to return to her employment in the reasonably foreseeable future.
Indeed, in my view, central to the employer’s case is that Hydro-Quebec clarified the third question in Meiorin, in the case of innocent absenteeism. The decision in Hydro-Quebec was followed by arbitrator Harris in Sault Area Hospital, and Telus argues those cases are “on all fours” with the case at bar.
I agree generally that the facts in the case at bar are similar. Hydro-Quebec concerned an employee had a number of physical and mental problems, and a substantial record of absenteeism, having missed 960 days of work between 1994 and 2001, some 7 years. Over the years, the employer adjusted her working conditions in light of her limitations: light duties, gradual return to work following a depressive episode, etc. As well, following an administrative reorganization, the employer assigned her to a position she was not “owed.” At the time of her dismissal in 2001, she had been absent from work for about five months, and her physician had recommended that she stop working for an indefinite period. The employer’s psychiatric assessment indicated she was unable to “work on a regular and continuous basis without continuing to have an absenteeism problem as … in the past.” The arbitrator denied the grievance. He accepted that she was unable, for the reasonably foreseeable future, to attend work regularly as provided for in the employment contract. The conditions for her return to work suggested by the union’s expert constituted undue hardship:
6. The arbitrator concluded that, given the specific characteristics of the complainant’s illness, if the suggestion of the Union’s expert were accepted, “the [e]mployer would have to periodically, on a recurring basis, provide the complainant with a new work environment, a new immediate supervisor and new co-workers to keep pace with the evolution of the ‘love-hate’ cycle of her relationships with supervisors and co-workers“. The arbitrator added that some of the factors that contributed to the complainant’s condition were beyond the employer’s control and that the employer would not be able to eliminate stressors related to the complainant’s family environment, as the suggestion of the Union’s expert would require….. [Emphasis added]
The application of the Meiorin approach was central to the appeal. The real issue was, as is frequently the case, the interpretation and application of the undue hardship standard. The Supreme Court noted two problems with the decision of the Quebec Court of Appeal. The first was that the court, with respect, appears to have misread the Meiorin test. The Supreme Court recognized that “concept of undue hardship seems to present difficulties” (para. 11). The Court reviewed central passages from Meiorin and commented: “What is really required is … proof of undue hardship:”
15. However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration….
16 The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but 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.
17 Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his or her work, it must do so to accommodate the employee. Thus, in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’hospital general de Montreal, [2007] 1 S.C.R. 161, 2007 SCC 4, the employer had authorized absences that were not provided for in the collective agreement. Likewise, in the case at bar, Hydro-Quebec tried for a number of years to adjust the complainant’s working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, [page571] 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. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Quebec (Procureur general) v. Syndicat de professionnelles et professionnels du gouvernement du Quebec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311: [TRANSLATION] “[In such cases,] 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. 76).
19 The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. [Emphasis added]
The second error of the Quebec appeals court, the Court noted, citing its decision in McGill University Health Centre, was that the duty to accommodate must be assessed globally in a way that takes into account the entire time the employee was absent:
33. ….. Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period.
21 In the instant case, the Court of Appeal applied a compartmentalized approach that was equally inappropriate. A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship.
In Coast Mountain, the B.C. Court of Appeal discussed Hydro-Quebec (paras. 82-92) in the context of a systemic discrimination complaint, set aside on judicial review in the Supreme Court. The Court’s analysis focused on the requirements for a prima facie case as opposed to undue hardship. It noted that Hydro-Quebec involved the difficult task of balancing between an employer’s legitimate expectation that employees attend work and the employer’s duty of accommodation in respect of employees who do not attend work regularly as a result of disabilities. In the Court of Appeal’s view, the Supreme Court of Canada in Hydro-Quebec made it clear that there are limits to the duty of accommodation, and that “the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, … the employee’s duty to perform work in exchange for remuneration” (Hydro-Quebec, para. 15). All the same, in the Court of Appeal’s view, Hydro-Quebec was not intended to change the Meiorin test. In my view, what the Supreme Court found in Hydro-Quebec was that there are limits to the duty to accommodate, which of course, was the case prior to that decision, namely undue hardship. What the Supreme Court said was that where a chronically absent employee, is unable to attend work in the reasonably foreseeable future, and the employer has taken measures to accommodate, the employer will have established undue hardship.
In Sault Area Hospital, a case somewhat similar on the facts to the case at bar, the employer terminated a long-term employee for excessive innocent absenteeism, due to a physical work place injury. In 2001, the grievor returned to work after an 18 months absence due to the injury. There were functional capacity evaluations and ergonomic assessments of her work and workplace. The Hospital made modifications to her workstation as requested by the grievor’s physician. In April 2008, the employer requested a prognosis of her condition and attendance from her physician. The employee had been placed in the attendance management program, her attendance monitored, and given six warnings. The Hospital terminated her employment in June 2008, in its view, having provided “any and all accommodations requested.” The arbitrator concluded that the employment contract had been undermined or frustrated, relying on the reasoning of Hydro-Quebec:
53 In my view the grievor’s absences were excessive and would continue; she was warned of the seriousness of the problem. Her rate of absenteeism had reached the point of undermining the employment relationship. She had been accommodated in her position yet her absenteeism continued at unacceptable levels. Any further toleration of such absenteeism would have been an undue hardship on the Hospital. In Hydro-Quebec, supra, the Supreme Court of Canada dealt with the standard for assessing such undue hardship.
54 In this case, the Hospital has respected the grievor’s fundamental rights in having accommodated her by making the necessary alterations to her workplace and duties. Regrettably, the grievor is not able to attend work regularly even though her job is within her restrictions. The Hospital’s duty to accommodate has ended because the grievor is no longer able to fulfill her part of the bargain. That is, she is no longer able to fulfill the basic obligations of her employment for the foreseeable future. If this case rested upon her workplace injury as the sole reason for her absences, the termination of her employment would be upheld in accordance with the law as laid down in Hydro-Quebec. However, here, it is agreed that she suffers other undisclosed maladies that must be taken as contributing to her absences. For reasons unknown even to her physician, she cannot attend work regularly. She routinely misses an excessive number of scheduled workdays. [Emphasis added]
On my reading of Hydro-Quebec, therefore, the employer must first establish at least two things, first, that the employee is chronically absent, and, second, that it has taken measures to accommodate the employee. The accommodation measures engage the Meiorin test.
In this case, there can be little argument that BP was not chronically absent. The focus of the analysis, therefore is whether or not the employer accommodated BP? The duty to accommodate is on the employer (Renauld). The employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business.
At Telus, issues relating to accommodation involve line management, Labour Relations and Health Services. Laviolette had limited information about BP’s medical conditions, other than what she had been told, for example, by BP herself. In Telus (Archibald), the employer did not have a duty to accommodate the grievor’s absenteeism related to diabetes because was not aware of the disability. Unlike that case, where “there were no tell tale signs that would have led the Employer to a more searching inquiry” of the grievor’s diagnosis (p. 15), BP’s 2003 disclosure, and the June 2006 meeting, could be considered such “tell tale signs.” In my view, Telus attempted to accommodate the depression, anxiety or dysthymia, which is what BP’s physicians had advised.
A depression may be disabling. In Dr. Hashman’s opinion, dysthymia, low-grade chronic depression, is not in itself disabling. Major depression most likely would be disabling. When the two co-exist in time, they certainly would be. However, BP suffered, as well, from a number of co-morbidities, not known to the employer at the time. I accept that Laviolette never requested any assessment from Health Services of the relationship between depression and BP’s absences. However, in my view, Laviolette involved Health Services and Labour Relations in the assessment of BP’s situation, particularly after the June 2006 meeting and until October 2008.
Overall, the employer put accommodation in place based on the conditions known to it, depression/anxiety and dysthymia, based on the information on supplied by BP and her physicians. As well, the employer put in place the all the accommodation requested by BP and her physicians (Sault Area Hospital). Telus Health Services also sought additional information from the specialists who had been treating BP in May 2005. A nurse with Health Services apparently reviewed the file for accommodation in 2005.
The last PAF received by Health Services on June 20, 2008, provided essentially the same diagnosis as previous PAFs. In Telus (Levins), the grievor had been diagnosed with chronic fatigue syndrome but, in fact, suffered from food allergies. Health Services was aware that she had been referred to an allergist. Telus knew that BP suffered from a depression related condition. In Telus (Dugay), the employer relied on PAFs without properly considering the information on it. That is not the case here. The medical information on the PAFs was accurate in the diagnosis, but, in hindsight, incomplete. On the last PAF, the doctor wrote BP was “currently at work since October 2007” and “continue with current accommodations.” Health Services confirmed that Laviolette continued to provide Monday through Friday shifts with five-minute breaks every hour. Health Services noted that Laviolette had advised that the BP had “missed a lot of time since her full-time return last year.” With the information provided, Health Services was unable to support days missed from October 2007 to August 2008. The “expectation is she would to be capable of working full-time with the accommodation of Mon–Fri and appropriate break times.” In the circumstances, it was appropriate to rely on the information provided in the PAFs. Laviolette’s view was that BP was capable of working her own job with the accommodation in place. In my view, there was consideration given to the question of accommodation.
Initially Laviolette provided informal assistance and support, including daily telephone calls to ensure that BP came to work, offering to go for coffee with her, delaying giving her warning letters etc. I would agree that she, perhaps, “lost patience” with BP in 2004-2005, when she gave her the bridge letter and prepared the first termination letter. As mentioned, at that time cooler heads prevailed, demonstrating, while ultimately decisions of this nature rested with the business unit, they involved others, including Labour relations and Health Services. In any event, in my view, BP must share some responsibility. She failed on several occasions to provide medical documentation in a timely manner. In February 2005, Laviolette noticed that BP spent 8-13 minutes extra time every day on her breaks, and BP explained, she had been playing “Solitaire” on the computer on her breaks, and the clock on the computer was out of synchronization with office clocks. As mentioned by Dr. Hashman, BP harboured strong and entrenched views of her employer. BP’s conduct may have reflected those perceptions. In any event, Telus provided the micro breaks requested. While there was a period where these breaks were not officially sanctioned, BP continued to take them, and Laviolette allowed her to do so.
Importantly, in connection with BP’s graduated return to work in October 2007, Telus implemented permanent accommodation for BP, and included BP and her physician in the implementation of the return to work plan. It was not a plan unilaterally imposed by the employer. The implementation of the plan involved management, Sun Life and Health Services.
Preparing for BP’s return to work, there was communication between Laviolette and Health Services, regarding “accommodation considerations” for BP’s return to work, proposing a one month graduated return to work period, and for “one month after that, her schedule will be normalized (five days a week consistently).” BP specifically requested micro breaks and one-hour lunches, on an ongoing basis. Health Services inquired whether it was possible to accommodate her. Laviolette agreed it was possible to accommodate. The 5-minute breaks required “additional manual tracking.” Laviolette inquired whether BP was considering consistent workweeks as well. Laviolette also consulted RPM because a shift had to be created for BP and “keyed in.” Operators normally work in a pattern of 8 or 9 days in a row, with 3 or 4 days off.
Apparently, BP appreciated that Telus was able to accommodate the breaks, the lunches and consistent workweeks. Carreira forwarded a formal return to work plan to Laviolette and Carra, a copy went to BP and her doctor “for review and approval.” Before she approved the return to work plan, Laviolette emailed Carra: “is this schedule okay with Health Services. It is fine with me.” The goal of the plan was to return BP to pre-disability occupation with permanent accommodations, with initial training. Sun Life’s rehab specialist discussed the plan with BP. Laviolette provided additional accommodation: 4 PM start time and few extra days off at Christmas. Laviolette got approval from Health Services for that. I am satisfied that she got everything she asked for.
This case is different on the facts from Telus (Dugay). There, the grievor’s managers mistakenly believed that was the employee’s responsibility to request accommodation. As well, he was unable to conclude that the grievor would be unable to resume work in the reasonably foreseeable future. The medical evidence here is clear on that point. As well, the substantive steps taken by Telus to accommodate far exceeded those in Telus (Dugay) – graduated return to work, retraining, assistance offered by Health Services and the manager, and, occurred over a period of years. Ultimately, the arbitrator was unable to conclude that she would have been unable to meet her basic employment obligations had she been properly accommodated. In the case at hand, there is little evidence as to how BP could have been accommodated other than tolerating continuing absenteeism. In my view, that does not make sense. There has to be a limit to accommodation. There was no other suitable job for her. On Laviolette’s evidence, BP was capable of performing the duties of her own job, and she agreed as much.
Attendance standards must not be arbitrary. They should provide for individual accommodation (Grismer, Desormeaux). The adjudicator in Ottawa-Carleton Regional Transit noted that:
66. Besides, I fail to see how “tolerating” absenteeism cannot constitute an acceptable type of accommodation. Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work, from time to time. The issue to be decided is whether this “tolerance” of a certain level of absenteeism would impose undue hardship on the employer, taking into consideration all the appropriate factors.
In Canada Post case, a pre-Hydro-Quebec decision, a 12-year employee was discharged for a high rate of absenteeism. In Canada Post, the arbitrator noted:
81. To require the Grievor to miss no more time due to illness than the average for his group, when his absences are in large part due to his disability, is not to accommodate his disability, in accordance with the law as it has developed. It is my responsibility to “enforce the substantive rights and obligations of human rights … statutes”. On the other hand, given his record, to require the Grievor to miss no more time than the average for his group due to other reasons, including other illnesses, would not constitute discrimination based on his disability. It may also be that in the future the total number of the Grievor’s absences, including those resulting from his disability, will impose an undue hardship on the Employer, but such a conclusion would have to be based further evidence, both of the Grievor’s absences and of the adverse effects of his absence on the Employer.
In my view, the Telus did, in fact, relax the attendance standards for BP. I agree with the adjudicator in Ottawa-Carleton that an employer is required to tolerate an amount of absenteeism in the case of a disabled employee. In this case, BP’s absenteeism was clearly excessive and Telus tolerated it over a long period of time, 14 years. Laviolette also testified, and I accept, that she expected BP’s absenteeism to be higher than other employees, and tolerated significant absenteeism over many years. If strict standards had been applied, BP would likely have been discharged long before October 2008.
I agree that absenteeism generally comes at a cost, including, for example, employee morale. Laviolette testified generally that (un-named) operators complained about BP’s absenteeism and management failing to address it. I do not give that much weight. In Renauld, the Supreme Court addressed the prospect of impact on other employees, including “employee morale,” and noted that it “is a factor that must be applied with caution.
I agree with the union, that there was little evidence with respect to the specific costs of accommodating BP’s absences, financial or otherwise. Generally absenteeism is costly for Telus. However, Moore agreed that, at the point of termination, there were no data quantifying the impact of the absences. She explained that such impact is difficult to quantify. I also agree that there was little evidence to support that the employer had any difficulty replacing BP when she was absent. However, From my review of Laviolette’s evidence, it is evident that she spent considerable time and effort over the years trying to manage BP’s absences, some of which were of the unpredictable, short-term variety, including calling her (for a time a least) daily to help her get to work, or trying to get her to provide doctors’ notes.
I agree that Telus did not consider whether BP could be successful in any other job. In Laviolette’s view, BP could perform the duties of her own job. Moore testified that the Operator position is an entry-level position, at least in terms of complexity. She also explained that Telus prior to the 2005 collective agreement had jobs that were less complex, janitorial, building services, mail room and coin collection, that were used for accommodation. These positions had been contracted out. However, there is also no suggestion that BP, the Union, or indeed Health Services, ever suggested that there was work that BP could successfully perform. The customer care representative job was, on the evidence of Pawluk, Moore and Laviolette, much more demanding, including sales expectations and longer calls with customers (30-40 minutes per call). It is not likely that there was any position or work that BP could perform. I think she was capable of performing the duties of her own job.
In Sault Area Hospital, the arbitrator found that the grivor’s own evidence established that the alternative jobs identified by the union were more demanding that the position she had and were beyond her restrictions: “given the grievor’s considerable restrictions, the … position was the most suitable, and it was more likely than not the only suitable job.” He noted:
57. …. Since … her home position, was within her restrictions, the Hospital was not required to explore other positions and make staff transfers, when the grievor’s workplace and duties had been arranged to enable her to do her work. To do so might negatively, and needlessly, offend the seniority rights of others.
In Telus (Harris), the arbitrator noted in obiter dicta that the employer was not required to find other work for the grievor “when it could find work in his own classification that met all the accommodations raised by [the grievor’s doctor].” In my opinion, the reasoning Telus (Harris) and Sault Area Hospital is persuasive in this regard.
Overall, therefore, I am of the view that Telus accommodated BP.
In addition, when BP’s absenteeism continued, despite the accommodation put in place, the employer sought further information. In Renauld, the Court noted that the process is a multi-party process, involving the employer, the union and as well as the employee, who is required to participate and facilitate the accommodation process:
43 The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. ….To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
44 This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable [page995] and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. [Emphasis added]
Unlike Tolko, this is not a case where “the Employer never considered the question of whether the grievor’s disability could be accommodated and the grievor and the Union never refused to provide any information that was requested” (para. 66).
BP refused to complete the prognosis letter on the advice of the local union president. In my opinion, that was not good advice. The prognosis letter was a request for medical information directly related to the accommodation issue. Up to that point Telus had principally relied on the PAFs for medical information, and the advice from BP’s doctor(s) contained in the PAFs, with respect to diagnosis, functional limitations and fitness for work, including modifications or accommodations. In Telus (Dugay), the employer relied on the PAFs, without properly considering the information on it. In my view, that is not the case here. Telus first provided temporary accommodation, though micro-breaks, requested by BP and her physician. It is evident that her attendance did not improve. Telus subsequently, after BP returned from her long medical leave, put in place permanent accommodation, implemented in consultation with Laviolette, Health Services, Sun Life, and, importantly, BP and her physician. They signed off on the return to work plan. They acknowledged that they were in agreement with the plan. All the same, BP’s attendance remained a serious problem. The employer then reasonably sought to obtain further information.
The prognosis letter, in my view, and I think this was acknowledged by the union, was a request for relevant medical information in order for the employer to meet the duty to accommodate, and was qualitatively different from the PAFs. The union was critical of Laviolette and Telus for failing to inquire into the relationship between BP’s disabilities and her absences. In Telus (Levins), arbitrator McPhillips found that (p. 30):
“… steps were not take … to make certain everything that may have been relevant was thoroughly considered ….. It was not appropriate for [F] and other managers, who quite rightly had no access to the medical information, to act without obtaining a formal, thorough, and up-to-date report on the medical prognosis for [the grievor]. Moreover, the employer, principally Corporate Health was aware that the grievor had been seeing specialists over two or three years and that another one (immunologist/allergist) was now involved. In my view, the employer should have at the very least had one of the physicians in Corporate Health review the grievor’s file and offer an opinion on the matter. It would also have been prudent for the company to have requested an updated opinion from Dr. Monks.”
In Telus (Levins), unlike this case, the prognosis was good, “allowing him to return to full-time employment without excessive absenteeism” (p. 23).
In the months prior to the decision to terminate, Moore questioned whether additional information would be useful. She abandoned the idea, among others, because of BP’s refusal to complete the prognosis letter on the union’s advice. She agreed that she did not seek the union’s assistance. In the circumstances, where the refusal is based on the union’s advice not to provide the information, in my view, there is no requirement that she do so. She also noted BP’s failure to respond to the September 11 letter. In her view, there was nothing further to be gained. In hindsight, given the medical evidence, that may well be true. The employer based its decision on the knowledge of depression, broadly speaking, and, in fact, the expert medical evidence suggests that her medical conditions were much more complex and, if anything, much less promising in terms of future regular attendance.
All the same, when the employer sought pertinent information relevant to the process of accommodation, BP refused to provide it on the union’s advice. The request was reasonable. When an employer has initiated a proposal that is reasonable and would, if implemented, assist the duty to accommodate, the grievor has a duty to facilitate the implementation of the proposal. Telus had provided accommodation. The absenteeism continued. If failure to take reasonable steps on the part of the grievor causes the proposal to founder, the grievance will be dismissed. In my view, Telus required further relevant medical information to facilitate the accommodation process, the refusal to provide such information may be fatal to her grievance (Renauld). In the circumstances of this case, I find that to be the case.
For all of the foregoing reasons, I dismiss the grievance.
F. Order
I order that the grievance be dismissed.
I retain jurisdiction to deal with any issue regarding the implementation of this award, if any.
“Ib Petersen”
_____________________
Ib S. Petersen
Arbitrato