GSB# 2005-2261

UNION# OLB538/05

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (McNaughton)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Ernest A. Schirru Koskie Minsky LLP Barristers & Solicitors

FOR THE EMPLOYER

Alison E. Renton Counsel Liquor Control Board of Ontario

HEARING

January 18, 2006.

Decision

This decision pertains to a discharge grievance dated October 4, 2005 filed by Ms. Melinda McNaughton. The case was argued on the basis of an Agreed Statement of Fact and no viva voce evidence was called. The agreed facts are as follows.

AGREED STATEMENT OF FACTS

The Employer and the Union (hereinafter “The Parties”) agree that the following agreed statement of facts is being entered into this matter without prejudice and precedent to any other matter between the Parties and may be supplemented by either Party by viva voce evidence.

1. The Grievor commenced employment as a casual warehouse worker at the London Retail Service Centre in 1999. On April 25, 2005 she was promoted to a full time warehouse worker 3 at the London Retail Service Centre.

2. Effective March 25, 2003, the Grievor was terminated from her position. A Grievance was filed and the Grievor claimed that she had an alcohol addiction which was accepted by the Employer. Minutes of Settlement were entered into dated April 11, 2003 (hereinafter “the 2003 Minutes”) which set out various treatment requirements by which the Grievor had to follow. A copy of the 2003 Minutes are appended hereto as Appendix “A”.

3. Pursuant to the 2003 Minutes, the Grievor was reinstated.

4. By letter dated September 12, 2003, the Grievor was terminated from her position. A Grievance was filed and was referred to the GSB as the subject matter of GSB # 2071/03. Again, the Grievor claimed that she had an alcohol addiction which was accepted by the employer. Minutes of Settlement were entered into dated February/March 2004 (hereinafter “the 2004 Minutes”) which set out various requirements, and addiction treatments for the Grievor to follow and the Grievor was reinstated. The Grievor was represented by union counsel during this proceeding. A copy of the 2004 Minutes are appended hereto as Appendix “B”.

5. On Tuesday, September 13, 2005, the Grievor was absent from the workplace. She returned to work September 14, 2005. She did not bring a doctor’s note to substantiate her absence within three (3) calendar days as required by paragraph 10 of the 2004 Minutes. The Grievor otherwise maintained an attendance rate within the parameters set out in paragraph 10 of the 2004 Minutes.

6. The Grievor was issued a letter dated September 20, 2005 for not bringing in a doctor’s note within three (3) calendar days and a meeting was scheduled for September 28, 2005. A copy of the September 20, 2005 letter is appended hereto as Appendix “C”.

7. The grievor attended the September 28, 2005 meeting along with her union representatives, Steve Saysell, Joe Hollyman and Jim McNelly. Robert Cote and Mark Wagner attended the meeting as the Employer’s representatives. At the meeting, and for the first time, the Grievor provided a doctor’s note dated September 13, 2005 that is appended hereto as Appendix “D”. The Grievor stated in the meeting that on September 13, 2005 she called her doctor’s office for an appointment but was not able to obtain one. The Grievor did not obtain an appointment with her doctor until September 23, 2005. During this appointment, she asked her doctor to back date the note to September 13, 2005, which the Grievor disclosed to the Employer during the September 28 meeting. At the meeting, the Grievor stated that she knew and understood the terms of the 2004 Minutes. At the meeting, the Grievor did not relate her absence or her failure to bring in a doctor’s note due to an alcohol addiction. There is no issue with respect to whether or not the Grievor was actually ill on the day in question.

8. By letter dated October 3, 2005, the Grievor was terminated. A copy of this termination letter is appended hereto as Appendix “E”.

8a. A stage 3 grievance, dated October 4, 2005 was filed. A copy of the grievance is appended hereto as Appendix “F”.

9. Paragraph 11 of the 2004 Minutes state:

The Parties agree that failure to meet any of the requirements of the agreement for the two (2) year period following the Grievor’s reinstatement shall result in the Grievor’s termination without the right to redress through the grievance and/or arbitration process except to establish the veracity of the facts upon which the Employer relied

10. Paragraph 12 of the 2004 Minutes states:

The Parties agree that an arbitrator’s jurisdiction shall be limited solely to determining the facts upon which the Employer relied, as set out in paragraph 11 above, and the Parties agree that an arbitrator shall not have the jurisdiction to substitute the penalty of discharge.

11. Article 12.4 of the Collective Agreement states:

After five (5) days absence caused by sickness or injury, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Employer certifying as to the nature of the sickness and that the employee is unable to attend to his/her official duties. Notwithstanding this provision, the Employer may require an employee to submit the certificate required hereunder in respect of a period of absence of less than five (5) days.

12. The Parties put to the Arbitrator the following question:

a) Should the Grievor’s termination be upheld for breaching the 2004 Minutes?

13. The Union puts to the Arbitrator the following questions:

Do paras. 10, 11, 12 of the 2004 Minutes violate the HRC?

If yes, are the 2004 Minutes void and/or unenforceable to the extent they violate the HRC?

ALL OF WHICH IS SUBMITTED, THIS 18TH DAY OF JANUARY, 2006 in London, Ontario

(Attachments omitted)

The 2004 Minutes of Settlement under which the grievor had been reinstated, referred to by the parties as “the last chance agreement” (hereinafter “LCA”), included paragraphs 11 and 12 set out in the agreed facts as well as paragraph 10 which reads:

10. The Grievor agreed that upon her return to active work, she shall maintain an attendance rate, exclusive of vacation, pre-approved absences, or serious illness or serious accident, as follows: For the first six (6) months following reinstatement, she shall miss no more than three (3) shifts. For the following six (6) months, she shall miss no more than five (5) shifts. For the year following the two (2) six (6) month periods, she shall miss no more than ten (10) shifts. The Grievor shall provide documentation substantiating such absence within three (3) calendar days upon her return to work. Further, the Grievor agrees that, without exception, she shall report all absences and late arrivals in a timely manner, and specifically not less than fifteen (15) minutes prior to the beginning of her scheduled shift, except in situations of serious illness and in situations as serious accident requiring hospitalization. The Grievor shall call and speak in person with a supervisor and in the event she has left a voice mail message before the commencement of her shift, she shall call again and speak in person with a supervisor to confirm the voice mail message.

(Emphasis added)

The agreed facts establish that the grievor was absent on Tuesday September 13, 2005. Documentation substantiating that absence was provided to the employer only on September 28, 2005. Thus, the union concedes that the grievor violated that requirement in the LCA.

The parties agree that the grievor suffered from an alcohol addiction, and that as such she was subject to a “disability” within the meaning of s. 5(1) of the Ontario Human Rights Code, which in part reads:

5.(1)Every person has a right to equal treatment with respect to employment without discrimination because of . . . disability.

The union’s primary argument is based on s. 5. It submits that paragraph 10 of the LCA which requires the grievor to provide documentation substantiating absences within 3 days upon returning to work as well as paragraphs 11 and 12 which prescribe automatic termination and limit an arbitrator’s jurisdiction do not apply to other bargaining unit employees. The only reason the grievor was subjected to those extra-ordinary terms is because of her disability, i.e. her alcohol addiction. Therefore, the argument goes, those terms are discriminatory on the grounds of disability contrary to s. 5 of the Human Rights Code, and are of no force and effect.

Union counsel acknowledged that the grievor’s absence on the day in question or her failure to provide medical documentation within 3 days for that absence was not related to her alcohol addiction. However, he submitted that that was not the relevant issue. The critical fact was that the grievor would not have been subject to the requirement in the first place, but for her past history of absences due to her disability.

Employer counsel reminded the Board of the well established principle that parties should be held to the undertakings made in grievance settlements. She stressed that good labour relations policy requires that the grievance settlements be strictly enforced. Re Braybrooke 1437/01 (Dissanayake). She submitted that the grievor had reaped the benefits of the 2004 Minutes of Settlement, including being reinstated in her job, and that she was now seeking to be relieved of the obligations she had undertaken in return. Union counsel did not dispute the general principle that grievance settlements must be strictly enforced. However, he submitted that any term of settlement that contravened the Human Rights Code is void and unenforceable. An arbitrator ought not, and is not required by any legal principle, to enforce or uphold a term in a settlement which contravenes the Code.

I agree with the general principle espoused by the employer, as well as the exception relied upon by the union. The case law clearly supports that position. For example, in Re Labatt Breweries Ontario, (2002) 2002 CanLII 79096 (ON LA), 107 L.A.C. (4th) 126 (Barrett) at p. 140, the arbitrator states, “I am strongly in favour of upholding last chance agreements unless they are in violation of the Human Rights Code.” A well reasoned statement in that regard is contained in Re DeHavilland Inc. (1998) 1998 CanLII 29982 (ON LA), 74 L.A.C. (4th) 125 (Rayner) at p. 128 as follows:

There is a strong policy reason to honour the terms of “last chance” agreements as I pointed out in my earlier award between the parties. Even if there is some residual power in the arbitrator to modify a discharge in the face of language similar to paragraph (6), and I have grave doubts as to whether any such residual power exists, one must keep in mind the reasons for “never-never” or “last chance” letters. They permit the employee to have one final opportunity to keep his job and they permit both parties, the Company and the Union, to resolve cases by agreement without resorting to the costs and uncertainty of an adversarial process. In my opinion the foremost consideration that should be in the mind of the arbitrator when asked to consider such letters should be the integrity of the letter itself. If these types of agreements are subject to modification except in the most limited of circumstances, they simply will not be made. As a result future employees who might have received the benefit of one of these letters will be denied that opportunity. Hence the policy of supporting these letter transcends the case of the individual grievor who has failed to abide by the terms of the letter. Naturally, it is always open to a union to prove that the letter has not been breached, or perhaps to prove that the letter was a legal nullity from the beginning. However in the face of paragraph (6) I do not think it is open to the Union to seek a substitution of penalty based on compassionate grounds which is the relief that I think the Union seeks. Even if I could grant such relief, for the reasons set out above I would not do so in this case no mater how sorry one feels for the grievor.

I agree with the union that if the terms of a LCA are contrary to the Human Rights Code, the fact that the union and the grievor had agreed to those terms is irrelevant. This is because the rights under the Code may not be waived or contracted out of. See, Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 (S.C.C.); Re Ontario Human Rights Commission v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985], 23 D.L.R. (4th) 321 (S.C.C.).

Therefore, the critical issue for determination is the issue framed by the union, whether paras: 10, 11 and 12 of the LCA void because they are in violation of the Human Rights Code.

Employer counsel relied on a number of prior arbitration awards in which last chance agreements were upheld as not violating the Human Rights Code. Re Espanola (Town), (1997) 1997 CanLII 25096 (ON LA), 61 L.A.C. (4th) 149 (Marcotte); Re Kimberly-Clark Forest Products Inc., (2003) 2003 CanLII 89527 (ON LA), 115 L.A.C. (4th) 344 (Levinson); Re York Region District School Board, (2004) 2004 CanLII 94625 (ON LA), 128 L.A.C. (4th) 317 (Craven); Re Toronto District School Board, (1999) 1999 CanLII 35886 (ON LA), 79 L.A.C. (4th) 365 (Knopf); Re A.O. Smith Enterprises Ltd., (2000) O.L.A.A. No. 573 (Tims); and Re Labatt Breweries Ontario, (2002) 2002 CanLII 79096 (ON LA), 107 L.A.C. (4th) 126 (Barrett).

In Re Espanola (Town),(supra) the LCA provided, inter alia, that “Should Mr. Howe commence drinking which interferes with his performance or causes him to miss time, he shall be dismissed forthwith, and he shall not have the right to grieve such dismissal, nor shall the union present a grievance on his behalf”. On a review of the evidence, the arbitrator concluded that the grievor breached the LCA in that “on two occasions the grievor did drink alcohol which consumption caused him to miss work.” The issue was whether the LCA was contrary to the Human Rights Code. At p. 170-172, the Board wrote:

Further, we note that the 1990 Letter of Agreement does not require the grievor to never drink alcohol as a condition of reinstatement. Rather, it provides for the grievor not to miss work as a result of consumption of alcohol. That is, we do not find that in accommodating the grievor’s handicap, the Employer imposed a standard that is higher than applied to other employees. The parties agreed that as a condition of reinstatement, the grievor was to be absent no more than the average absenteeism in his department. In Re Sault Ste. Marie (Joyce) supra, the arbitrator, as one condition of reinstatement, directed that the grievor, who suffered from alcoholism, was to maintain a level of attendance at work which “during the two-year period must be no worse that the average for employees in his department.” In Re Sault Ste Marie (Hinnegan) the arbitrator states at pp. 13-4: “reasonable attendance is normally measured by the employee’s level of attendance compared with the average for other employees in his department over a reasonable period of time.” In the opinion of Judge Steele at p. 2 [p. 162 O.A.C.] of his decision in O.P.S.E.U., supra, a “failure to meet the average attendance record could be grounds for dismissal of any employee and was therefore not discriminatory”; but see Judge MacFarland’s decision in that same case, at p. 4 [p. 163 O.A.C.] that this standard was not required of other employees and thus was not lawful. We prefer the view of arbitrator Joyce, which view is generally held by arbitrators as indicated by arbitrator Hinnegan, that a proper standard to measure reasonable attendance is an employee’s departmental average of absenteeism. In so finding, we note that the grievor’s absenteeism over the course of his employment subsequent to April 30, 1990, was related to his alcoholism on the occasion of his October 1991 accident. We further note, as was Mr. Sheppard’s undisputed testimony, that excessive absenteeism was a factor in the Employer’s initial decision to discharge him prior to April, 1990. In the result, we do not find that the standard of reasonable attendance as measured by the average rate of absenteeism in the grievor’s department was a higher standard than imposed on other employees in all the circumstances of the case before us.

As to whether or not the grievor was subjected to closer scrutiny than were other employees, we note that in each of the years following his April 30, 1990 reinstatement, his rate of absenteeism, however measured, greatly exceeded his department average. Simply stated, that the Employer tolerated this circumstance for some three years militates against any argument of closer scrutiny of the grievor arising from the 1990 Letter of Agreement.

In the result, and based on all the foregoing, we do not find that the Employer, in the particular circumstances of the matter before us, failed to meet its obligation to accommodate the grievor by way of his handicap. We find, also, that based on the legitimate and real health and safety requirements attending the grievor’s work circumstance, that to reinstate the grievor to the public works department would lead to undue hardship. We also find that, in regard to the matter of accommodation, the grievor has failed to fulfill his obligation to seek out successful treatment of his treatable handicap condition. We also find that the requirement in the 1990 Letter of Agreement for the grievor to not be absent at a rate higher than his annual departmental average is reasonable and in line with a recognized arbitral view of that which constitutes a reasonable standard of attendance in cases of reinstatement where the issue involves excessive absenteeism.

(emphasis added)

In Re Kimberly Clark Forest Products Inc., (supra), the grievor was subject to a LCA which required him, inter alia, to abstain from the use of non-prescribed drugs for 36 months and to provide urine samples on an unannounced basis at the employer’s request. The grievor was discharged pursuant to the LCA. The issue before the arbitrator was whether the requirements in the LCA breached constituted bona fide occupational requirements (BFOR) for purposes of the Human Rights Code. The arbitrator concluded that they were. At p. 367 he concluded:

30To summarize, I conclude that the grievor actively smoked marijuana contrary to his commitment in the LCA. I further conclude that the requirement that the grievor abstain from using non-prescribed drugs for 36 months, the requirement that he submit to drug testing on an unannounced basis for the same period and the parties’ agreement that discharge will be the appropriate penalty should the test results indicate the presence of non–prescribed drugs are BFORs. Consequently, the Code does not prohibit the Company from relying on the prescribed penalty of discharge in the LCA and the LCA circumscribes my jurisdiction to substitute another penalty for the discharge in these particular circumstances.

(emphasis added)

In Re York Region District School Board, (2004) 2004 CanLII 94625 (ON LA), 128 L.A.C. (4th) 317 (Craven) the grievor was discharged on the grounds that he had breached a LCA in several respects. At p. 324 the arbitrator found as follows:

I am satisfied that in respect at least of his failure to follow the reporting requirements of February 26, the grievor was in breach of the “last chance” agreement. It is not necessary to determine whether this amounted to a “substantial” breach, because it is abundantly clear that the grievor’s failure to attend at work on February 26 and 27 was a sufficiently substantial breach of the “last chance” agreement.

Item 3 of the agreement refers to “any unacceptable or unauthorized absence or lateness.” The grievor’s absences on February 26 and 27 were due to his consumption of alcohol on February 26.

At pp. 327-328, arbitrator Craven considered the issue to be, whether the grievor’s continued absences and his failure to give timely notice of his absences, caused undue hardship to the employer:

In my opinion this history demonstrates considerable effort by the Employer to accommodate the grievor’s disability, to provide opportunities for rehabilitation, and to motivate the grievor to undertake and commit to ongoing treatment. Despite these accommodations, and despite the grievor’s repeated efforts to secure medical treatment and to draw on the support of AA, there have been frequent relapses.

The Employer led evidence to the effect that the grievor’s absences and in particular his failure to provide timely notice of his inability to attend at work, have created difficulties in scheduling and in arranging for the necessary work to be performed, especially when high school caretakers have been detailed to work in elementary schools in anticipation of the grievor’s attendance at work. I find that the grievor’s absences and failures to report have imposed hardship on the Employer.

There is evidence, therefore, of considerable efforts on the Employer’s part to accommodate the grievor’s disability, and evidence too of efforts by the grievor to address his alcoholism accompanied by several relapses. The question remains whether the Employer has accommodated the grievor to the point of undue hardship. To put it bluntly, when is enough, enough?

At p. 330, he concluded:

To the extent that the grievor’s poor attendance and failure to comply with reporting requirements were beyond his control, the Employer was entitled to terminate the grievor in the absence of a demonstrated capacity for or clear prognosis of future improvement. The Employer was obliged to accommodate the grievor’s disability to the point of undue hardship. That point was reached when, after a lengthy history of unsuccessful attempts at accommodation, the further hardship necessarily occasioned by additional accommodation was not offset by substantial evidence of a good prospect for future performance.

For all these reasons, the grievance must be denied.

(emphasis added)

In re A.O. Smith Enterprises Ltd. (Supra), the arbitrator noted at p. 6 that the grievor had breached the LCA in the following manner:

18. There is no dispute between the parties that the grievor breached the provisions of the October 1999 agreement. He failed to participate in the recommended after-care program, as required by paragraph 6. He did not produce a doctor’s note for his sick days, contrary to paragraph 8 of the agreement. Finally, his absence on March 10, and April 10-18, 2000, exceeded “one occasion every two months” as set out in paragraph 10 of the agreement. The evidence establishes that the average rate of absenteeism in the plant is less than six days per year.

The employer’s position is set out at p. 7 as follows:

27 The Company further denies that the terms of the last chance agreement constitute discrimination prohibited by the Human Rights Code. In any event, Counsel suggests that the evidence establishes that the Company has accommodated the grievor up to the point of undue hardship. The Company asks me to consider its ongoing unsuccessful attempts to assist the grievor in light of what it characterizes as the absence of rehabilitative potential here, and to deny the grievance.

The union’s position was as follows (p.7):

29 The Union argues that the grievor suffers from alcoholism, a handicap within the meaning of the Human Rights Code. It acknowledges that the grievor’s attendance has posed serious problems for the Company and that the Company has made significant efforts over the years to accommodate him. The Union’s representative submits, however, that although the parties entered into the last chance agreement here in issue in good faith, the terms of such agreement constitute discrimination prohibited by the Code, and the agreement is thus void and unenforceable.

30 The Union argues that the agreement discriminates against the grievor on the basis of handicap in that it subjects him to “unusual burdens.” Specifically, the Union asserts that the agreement is discriminatory in requiring that the grievor advise the Company of any medications he may take, and in requiring that he maintain the plant average attendance record or face discharge. Most importantly, the Union submits that the agreement violates the Code in denying the grievor the right under section 48(17) of the Labour Relations Act, 1995 and Article 8.08 of the collective agreement to have reviewed the penalty imposed on him by the Company. The Union further maintains that the Company failed to accommodate the grievor to the point of undue hardship, and asks me to conclude that the termination of the grievor’s employment pursuant to the last chance agreement cannot be upheld.

Following a review of the evidence at p.10 arbitrator Tims wrote:

43 While it is for the Company to establish that it has accommodated the grievor to the point of undue hardship, its efforts must be viewed in the context of what Arbitrator Rayner referred to as his “rehabilitation potential.” (See Re O-Pee-Chee Company, supra).

44 The grievor returned to work in January 2000 pursuant to the last chance agreement. The evidence is clear that he resumed drinking shortly after his return, and that he was in breach of the terms of the agreement by February 2000.

45 The Union asks that I reinstate the grievor on a last chance basis, with whatever conditions I view as appropriate. Neither the Union nor the grievor suggested anything specific that the Company had failed to do in fulfilment of its statutory obligations.

46 I am of the view after considering all of the evidence and the submissions of the parties, that the grievance must be denied.

47 The grievor failed to comply with the terms of the last chance agreement, and he and the parties agreed therein that termination of employment would result. Even if the provisions of the said agreement offend section 5 of the Human Rights Code, I must conclude that such discrimination would be excused in the present case by section 17 of the Code.

48 It was agreed by the parties that regular attendance at work is an essential duty of the grievor’s job, and I am of the view that the Company has established that it has made efforts to accommodate the grievor to the point of undue hardship.

(emphasis added)

The union relied on two judicial authorities in support of its position that the provision of the LCA the grievor had breached was contrary to the Human Rights Code, and therefore void.

In Re Ontario Human Rights Commission v. Gains Pet Foods Corp. (1993) 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Ont. Div. Ct.) The LCA in question was held to be contrary to the Ontario Human Rights Code in two ways, one of which is directly relevant to the instant case. The LCA provided, inter alia, as follows:

(a) During the next twelve (12) months of your employment you will be expected to maintain a level of attendance equal to or better than the average for the hourly rated employees in the plant. The plant average will be calculated on a rolling 12-month basis.

Failure to meet the above requirements at any time will result in the termination of your employment.

The grievor was terminated for non-compliance with that undertaking. At p. 291-92, the court wrote:

In cross-examination, Mr. Gerber, director of operations of the respondent company at all relevant times, candidly conceded that but for Ms. Black’s absence from November of 1984 to April of 1985, due to cancer, the restrictive condition would not have been imposed upon her. (See transcript of evidence, vol. 5, p. 674, line 14 to p. 675, line 3.)

It was conceded by the respondents throughout that cancer constituted a handicap within the meaning of s. 4(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19(the “Code”)

Based upon the clear admission of Mr. Gerber, it is apparent that irrespective of Ms. Black’s prior history of absenteeism, the proximate if not primary cause of the restrictive condition in the April 29 letter arose directly from Ms. Black’s absence due to her disability. While it certainly would have been open to the respondents to warn Ms. Black, upon her return to work in April of 1985, that she was required to maintain a reasonable level of attendance, absent which, she would be terminated, the imposition of the restrictive condition was discriminatory, stemming as it did directly from her absence due to handicap: see Engell V. Mount Sinai Hospital (1989), 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68 (Ont. Bd. Of Inquiry); Glengarry Industries/Chromalox v. U.S.W.A., Local 6976 (1989) 1989 CanLII 9295 (ON LA), 3 L.A.C. (4th) 326 (Ont.); and General Tire Canada Ltd. v. U.R.W., Local 536 (1986), 1986 CanLII 6652 (ON LA), 26 L.A.C. (3d) 95 (Ont.).

Although the respondents submitted that the restrictive condition amounted to nothing more than a warning, we do not agree. It was a condition not required of or imposed upon any other employee and it carried with it the sanction of immediate termination for non-compliance.

Indeed, Ms. Black’s subsequent failure to live up to that condition led directly to her termination on January 6, 2986. The letter of termination, found at tab 6 of the Appeal Book, leaves little doubt that Ms. Black’s dismissal stemmed in large measure from her failure to comply with the terms of the restrictive condition, a condition which we have found to be discriminatory and in violation of her rights under the Code.

It should be noted that although the second paragraph of the termination letter begins with the words “we agreed at that time (April 29, 1985) that your continued employment with Gaines”, the record is clear that Ms. Black, at that time, simply agreed to do the best she could. Her acceptance of these conditions was to that extent qualified. Regardless, even if it could be said that she agreed to the restrictive condition, such agreement would be unenforceable: see Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14

Thus, we are satisfied that Ms. Black’s termination was both directly and substantially linked to the imposition of the restrictive condition which we have found to be discriminatory.

(emphasis added)

In OPSEU v. Ontario (Ministry of Community and Social Services) [1996] O.J. No. 608 (Ont. Div. Ct.), para 4 of the LCA provided as follows:

4. The Grievor’s attendance record will be reviewed every six months for a period of two years following the date upon which the Grievor is re-instated to his employment.

If in any six month period the Grievor fails to meet or surpass the average attendance record of the department, he will be subject to dismissal pursuant to the terms of this agreement.

The grievor failed to meet the average attendance record of the department for the 6 month period ending April 27, 1993 and was terminated.

The union’s argument there was very similar to the one made before me:

11 The Union, on behalf of Mr. Blackhall, argues that this paragraph 4, in particular, is discriminatory in that Mr. Blackhall is required, by its terms, to perform to a standard not required of one-half of the other employees within his department, the departmental average representing the midpoint with half the employees above the average and the other half below it.

MacFarland J. for the majority held:

13 We are of the view that paragraph 4 is discriminatory because at the very least, it requires Mr. Blackhall whose absenteeism was known to be caused, at least in part, by his handicap, to meet a standard not required of other employees and subjects him to a review process when other employees similarly situated are not.

14 The evidence is clear that in 1991 when Mr. Blackhall was initially terminated he has been absent a great deal of time due to his obsessive compulsive disorder and the employer was aware of it. It is also clear that in imposing paragraph 4 of the settlement agreement on Mr. Blackhall they did so - at least, in part, because of his absence due to a handicap within the meaning of the Code. In so doing, the employer discriminated against Mr. Blackhall within the meaning of the case of Re Ontario Human Rights Commission v. Gains Pet Food (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (On. Div. Ct.). The fact that Mr. Blackhall agreed to the condition does not assist the employer, as such agreement is unenforceable: Gains Pet Food at p. 292.

In the present case, it is important to note the requirement in the LCA which the grievor failed to comply with. She was required to provide medical documentation for her absence on September 13, 2005 within 3 calendar days upon returning to work. She returned to work on September 14th. Therefore, he was required to provide the documentation no later than September 17th. She did so only on September 28th. That delay was the basis of her termination. This is evidenced from the letter of termination dated October 3, 2005 which in part reads:

I have considered all the information that is available to me, and have determined that disciplinary action is warranted. I note that you entered into Minutes of Settlement in February 2004, wherein you agreed, in paragraph 10, to “provide documentation substantiating such absence within three (3) calendar days upon your return to work” and were warned, in paragraph 11, that failure to meet any of the requirements of the agreement for a two (2) year period shall result in automatic termination. Because you failed to provide the medical documentation for your September 13, 2005 absence in accordance with paragraph 10, your employment is terminated based upon your breach of paragraph 11 of the Minutes of Settlement.

On a review of the authorities relied upon by the parties, the appropriate approach in cases of this nature is as follows:

(1) First, it must be determined whether the grievor breached the standard or requirement in the LCA as alleged by the employer.

(2) Second, it must be determined whether or not the LCA subjected the grievor to a standard or requirement which is higher or more onerous than that imposed on other employees.

(3) Third, if the answer is in the affirmative, I must determine whether the higher standard or requirement was imposed on the grievor, in whole or in part, because of her disability. If the answer is “yes”, the standard or requirement is discriminatory and violates the Human Rights Code.

(4) Finally, in the event that the standard or requirement is found to be discriminatory, I must proceed to consider whether or not that standard or requirement is nevertheless valid and enforceable because it constitutes a bona fide occupational requirement (BFOR) and/or because the requirement represents the point of undue hardship for the employer.

The decision in Re Toronto District School Board (supra) relied upon by the employer is a good illustration of this approach.

At pp. 383-384, arbitrator Knopf wrote:

Therefore, on the narrow question of whether there was just cause to discharge, the Last Chance Agreement directs in paragraph 8 that any breach of conditions of the agreement would be deemed to be for just cause. These parties agreed in submissions before me that the grievor has breached conditions of the Agreement. Therefore, on the basis of the agreed facts and giving full respect to the voluntarily executed terms of the Last Chance Agreement, it must be concluded that just cause for discharge has been proven in this case. But this does not end the matter. The Union has argued that the Agreement, in itself, is a violation of the Human rights Code in that it sets up discriminatory conditions against the grievor on the basis of her handicap, that is, her addiction to alcohol. The Union relies on the reasoning in the Fantom Technologies Inc. case, supra, at pages 246-248 and following:

Counsel relied on two decisions of the Ontario Divisional Court. The first was Re Ontario Human rights Commission and Gaines Pet Foods Corp. (1994), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290. In the Gaines case, the complainant had a restrictive condition imposed on her when she returned to work after a six-month absence due to a serious illness. The condition was that she would be “expected to maintain a level of attendance equal to or better than the average of the hourly rated employees in the plant” [at p. 291]. Failure to meet that instruction would “result in the termination of [her] employment”. The court noted that irrespective of the complainant’s history of absenteeism, which was extensive, the primary cause of the restrictive condition arose directly from her disability. As it transpired, the complainant failed to live up to the condition and was terminated. The Court held that even if the complainant has accepted the condition, “such agreement would be unenforceable”, at p. 292. In so holding, the Court relied upon the decision of the Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

In the Etobicoke case, the Supreme Court had before it a mandatory retirement clause in a collective agreement. It was argued that as the parties had negotiated the condition and that it was based, in part, on the demands of the particular occupation, it ought to be respected as a bargain between the parties. Mr. Justice McIntyre, for the Court, held that to give effect to that argument “would be to permit the parties to contract out of the provisions of The Ontario Human Rights Code . . . It is clear from the authorities, both in Canada and in England, that parties are not competent to contract themselves out of the provisions of such enactments and that contracts having such effect are void, as contrary to public policy” [at p. 213].

The Divisional Court in Gaines [Ontario (Human Rights Commission v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 50 C.C.E.L. 315, 28 C.H.H.R. D/256, 94 C.L.L.C. 17, 004, sub nom Black v. Gaines Pet Foods Corp., 16 O.R. (3d) 290, 44 A.C.W.S. (3d) 758] held that the complainant’s termination was both “directly and substantially linked to the imposition of the restrictive condition which we have found to be discriminatory” [at p. 292] and therefore unenforceable. The Court held that the complainant’s rights under the Code were violated, because in terminating her the company took into account her six-month absence due to her cancer. The Court also noted the complainant’s lengthy absenteeism record and held that “the law is clear that the prohibited ground of discrimination need not be the only reason for the action taken, as long as it forms one of the reasons”, at p.293.

The Gaines decision was followed by another panel of the Ontario Divisional Court in O.P.S.E.U. V. Ontario (Ministry of Community and Social Services ) (unreported, February 21, 1996, Court File No. 544/95). In that case the grievor suffered from an obsessive compulsive disorder, which was a handicap within the meaning of the Code. The grievor had been dismissed in 1991 because of absenteeism related to his condition and was reinstated on terms. Paragraph 4 of the Settlement provided that if he failed to meet or surpass the average attendance record of the department in any six-month period, he would be subject to dismissal. In March, 1993, he failed to meet the average and was dismissed. The holding of the Divisional Court, and it is particularly relevant to this case, was that the grievor was required to meet a standard not required of other employees, and subjected him to a review process when other employees similarly situated were not. That constituted discrimination on the basis of disability contrary to the Code. And, as in Gaines, the Court held that the fact that the grievor agreed to the condition does not assist the employer, “as such agreement is unenforceable”.

Arbitrator Knopf concluded as follows:

I am of the opinion that the decision in Gaines, supra, and in O.P.S.E.U. v. Ontario (Ministry of Community and Social Services), supra, decide the issue in this case. That is, a condition was imposed upon Comaniuk because of his handicap, which subjected him to a review process particular to him, and not imposed upon his fellow employees. And the fact that he agreed to it, and was advised by his union in doing so, does not render the Agreement any less unenforceable, see the decision of the Supreme Court of Canada in Etobicoke, supra. The passage in Labatt’s, supra, does not state the law in Ontario, and appears to be contrary to the ruling in Etobicoke, supra.

Finally, counsel for the Company argued that paragraph 5 ousted entirely the jurisdiction of an arbitrator to hear this case. That is, if there was a breach of the Code, then the proper place for Comaniuk to complain is either in the Ontario Courts or before the Ontario Human Rights Commission. He could not come to arbitration because he agreed, in paragraph 5 of the Agreement that he would not. I am of the opinion that the Agreement not to grieve or to resort to the arbitration process, is not a provision that is severable from the rest of paragraph 5. Indeed, it is an essential part of it, and the whole is violative of the Code and unenforceable for the reasons set out above.

The preliminary objection is dismissed and it is ordered that Comaniuk be returned to work upon receipt of this Award. This is not a case for compensation.

(emphasis added)

Having concluded that the requirement of the LCA breached by the grievor was discriminatory, however, the arbitrator stated that such finding was not the “end of the matter”. She went on to consider the employer’s argument that the LCA term in question constituted an accommodation to the point of undue hardship. She wrote at pp. 387-388:

Again, the recitals in the Agreement set out a background of work performance problems and alcohol abuse in the workplace. This led the parties to the mutual agreement that the situation could not continue. This is understandable in any workplace, but particularly so in the context of a public educational institution. The evidence discloses that by November 1997 there was a recognition that the grievor’s presence at the work site could not be continued and should not be resumed unless and until abstinence and other conditions could be maintained. This was a “reasonable” response to a difficult situation. Further, the parties recognized that this response was taken after “every reasonable effort to accommodate” the grievor had already been provided. (See paragraph (iv) of the Agreement.) To ask that the reasonable terms and conditions of the Agreement be set aside after having already made “every reasonable effort to accommodate”, the grievor would be putting the Employer in a position of undue hardship. It would negate the efforts made to date and it would render meaningless to this grievor and all others in her situation the importance of a last chance agreement.

Therefore, I must conclude that the evidence establishes that the Employer had accommodated this grievor up to the point of undue hardship at the time the Agreement was signed. Further, at the time of termination the Agreement can be seen as an additional accommodation. To expect any further accommodation would be putting this employer to undue hardship. The test is not whether anything else could have been done. There is always something more that could be done for a person in distress. There is always the hope that one more try or one more treatment will turn a situation around. But the Human Rights Code does not demand that disabled employees be given every conceivable opportunity. It demands that the employee be accommodated to the point of undue hardship by the employer. The facts here establish that the Employer has met the burden of proving that level of accommodation.

(emphasis added)

It is apparent that in Re Toronto District School Board the LCA provision was upheld, although found to be discriminatory and contrary to the Code, only because on the particular evidence the Board concluded that the employer could not make any further accommodation, without suffering undue hardship, with regard the grievor’s inability to attend work to an acceptable level.

The same is true of the decision in Re Labatt Breweries Ontario, (2002) 107 L.A.C. (14th) 126 (Barrett). There the grievor had a heroin addiction. In a LCA all parties had agreed that “the company has fulfilled its duty of reasonable accommodation under the Human Rights Code and the union shall not argue for any further accommodation of Simon by the Company” The union’s position is set out at p. 138:

It is the position of the Union that several provisions of the last chance agreement discriminate against the grievor due to his handicap. He has restrictions placed on him that are not imposed on others. Paragraph 4 provides that he cannot be under the influence of drugs while not at work. The testing provision is not imposed on other employees, and testing can measure drug use outside of working hours. Paragraph 7 requires that he maintain the plant average absenteeism rate, while paragraph 9 takes away his right to have an arbitrator exercise her jurisdiction to substitute a lesser penalty than discharge for a breach.

In the LCA, the grievor had agreed to immediately co-operate with a company request to provide a blood or urine sample when requested, for testing for drugs. He was discharged because he refused to provide a urine sample when requested.

At pp. 142-143 the arbitrator wrote:

The provision of the last chance agreement that Mr. Bartolo violated was one that was reasonable and bona fide in the circumstances, and not discriminatory in the light of his acknowledged drug addiction and the obvious requirement that people be drug-free at work. I do not think it is necessary for me to examine every clause in the last chance agreement for signs of discrimination arising out of handicap. The one that was violated was reasonable and bona fide.

At p. 143 she concluded that the employer had accommodated the grievor to the point of undue hardship:

I find that the Company had accommodated the grievor’s handicap up to the point of undue hardship at the time it terminated him. It put up with a lengthy discipline and absenteeism history, it accommodated two four-month and one seven-month leaves of absence for rehabilitation programs, the last two of which were paid for by the Company. On the last two occasions, his return to work hours were accommodated to meet his program requirements without loss of pay. And, of course, there is the very important acknowledgement that the last accommodation was sufficient.

(emphasis added)

Turning to the other arbitration decisions relied upon by the employer, in Re Espanola (supra), it was found that the grievor was not subjected to a higher standard, and further that he had been accommodated to the point of undue hardship.

In each of the other decisions relied upon by the employer, the decision turned on the fact that the requirement imposed on the grievor was a bona fide occupational requirement and/or that the employer had accommodated the grievor to the point of undue hardship.

Turning to the instant case, the first of the four steps I have set out above is easy to apply since the parties agree that the LCA was breached by the grievor. She was required to provide documentation relating to an absence within 3 days of her return to work. She failed to meet the 3 day timeline.

As for the second step, employer counsel argued that the 3 day time limit was not a requirement peculiar to the grievor. Reference was made to article 12.4 of the collective agreement which is set out in the agreed facts. (p. 5 supra)

I agree with union counsel that the LCA requirement in question is very different and more onerous than that contained in article 12.4. That article is about entitlement to leave with pay for absences caused by sickness or injury. It does not impact on the issue of just cause for discipline and discharge. In any event, for absences of less than 5 days, it gives the employer a discretion to require a medical certificate. It does not require a certificate in all cases of absence due to sickness, as was the case in the grievor’s LCA. Finally, article 12.4, unlike the LCA, does not stipulate any time deadline for production of a medical certificate. Therefore I conclude that the LCA imposed a higher standard on the grievor.

Moving on to the next step in the analysis, employer counsel pointed out that while the grievor’s absence on the day in question was due to a legitimate illness, it had nothing to do with her disability, i.e. her alcohol addiction. Her failure to produce medical documentation with 3 days was not related to her disability either. Thus she submitted, that the LCA requirement the grievor breached was not linked to the disability and therefore could not held to be contrary to the Human Rights Code.

In my view, the fact that the breach itself was not related to the disability is irrelevant. That is not the test. The test is whether or not the higher standard was imposed on the grievor because of her disability. See the Court decisions in Re Gaines Pet Foods and Re OPSEU (supra). To illustrate, assume that a LCA requires that X be not absent more than 5 days in any calendar month, a condition not required of other employees. The requirement was imposed on X in an attempt to control her absenteeism due to her disability i.e. a drug addiction. X exceeds the 5 day limit following an auto accident. Even though the breach was caused by an absence unrelated to X’s disability, it would nevertheless be discriminatory because X would not have been subjected to that 5 day time limit, but for her disability. The same is true in the present case. But for her addiction, the grievor would not have been subject to the requirement she breached. The employer did not argue otherwise. That is the link that renders it discriminatory on the grounds of disability. Thus in Gaines Pet Foods (supra), the Court reasoned “. . . it is apparent that irrespective of Ms. Black’s prior history of absenteeism, the proximate if not primary cause of the restrictive condition in the April 29 letter arose directly from Ms. Black’s absence due to her disability”. In OPSEU v. Ontario, the Court stated: “We are of the view that paragraph 4 is discriminatory because at the very least, it requires Mr. Blackhall whose absenteeism was known to be caused, at least in part, by his handicap, to meet a standard not required of other employees and subjects him to a review process when other employees similarly situated are not”. The Court observed: “It is also clear that in imposing paragraph 4 of the settlement agreement on Mr. Blackhall, they did so – at least in part, because of his absence due to a handicap within the meaning of the Code. In so doing, the employer discriminated against Mr. Blackhall within the meaning of the case of Re Ontario Human Rights Commission v. Gains Pet Food, (1993) 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Ont. Div. Ct)”.

Based on the legal principles reviewed above, I conclude that paragraph 10 of the LCA is discriminatory on the basis of the grievor’s disability and offends the Code.

The final issue is whether paragraph 10, although discriminatory, is nevertheless enforceable on the grounds that the requirement imposed on the grievor represented the point of undue hardship on the employer’s duty to accommodate, or that the requirement constituted a BFOR. As noted, such a result was achieved in cases such as Toronto District School Board (supra) on the grounds that the employer had reached the point of undue hardship in accommodating the grievor’s disability. In the present case the employer did not make an argument of undue hardship. This is not surprising because on the particular facts such an argument could not have succeeded. If the breach on the part of the grievor had been a failure to meet the attendance rate imposed on her in paragraph 10, depending on the totality of the evidence, an argument could have been made that the ability to meet that rate of attendance was a reasonable requirement, and that there was no further accommodation the employer can make to help the grievor achieve that attendance rate. Similarly, if the requirement breached caused the employer serious operational problems, (e.g.: failure to give timely notice of an absence as in Re York Region District School Board) (supra), an undue hardship argument may be made. The breach by the grievor was not of that nature. The grievor did produce the required medical substantiation. Her breach was, she produced it late. There is simply no evidence that that delay caused the employer any hardship.

S. 17(1) and (2) of the Human Rights Code provides:

s. 17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(2) The Commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The failure to produce medical documentation within 3 days has no impact on the grievor’s ability to perform the essential duties of her job. Indeed, there is no suggestion that the grievor was deficient in relation to job performance, by way of her ability to regularly attend work or in any other way. At least there is no suggestion to the contrary. It is not conceivable (and it was not argued) that the grievor’s failure to adhere to the 3 day time limit in producing medical substantiation for her absence on September 13, 2004 caused the employer any hardship, let alone “undue hardship”.

It follows that unlike in the cases relied upon by the employer, in the present case there is no legal basis upon which the requirement imposed on the grievor, which I have found to be discriminatory, can nevertheless be found to be enforceable. Therefore the grievor’s discharge cannot stand since it was based on a provision in the LCA which was contrary to the Human Rights Code. That provision is void and unenforceable.

Employer counsel submitted that in the event I find to that effect, I ought nevertheless impose an appropriate degree of discipline on the grievor for her breach. In the circumstances of this case, I have no basis for doing that. Since the employer is not entitled to rely on the LCA provision, to justify any discipline, the employer must establish just cause. The evidence before me does not do that. I have no evidence that the employer required, independent of the LCA, that the grievor produce medical substantiation by exercising its discretion under article 12.4. Even if there was evidence that the grievor was under such a direction, from the employer, independent of the LCA, to produce medical substantiation for her absence on September 13th, 2005 within 3 days of her return to work, the only facts before me are to the effect that the grievor represented to the employer that she attempted to get an appointment with her doctor but could not get one until September 23, 2005. Employer counsel submitted that the grievor could have gone to the emergency dept. in a hospital or to some other medical clinic, rather than wait for her own physician. However, that issue was not litigated and I have no evidence in this regard at all. Were there other options available to the grievor and if so, did she have a reasonable explanation for not taking those options. There is simply no evidence before me upon which I can find that the grievor was culpable. That is a matter not addressed by the parties, except by way of employer counsel’s submission.

In the cases where a disabled employee’s discharge is upheld based on a LCA, arbitrators often express their personal sympathy for the grievor. Arbitrators recognize that the employee is denied his livelihood because of his disability, but that it is a necessary result because the employer cannot, under the law, be required to undertake any more hardship. In the present case the reverse is true. The sympathy goes to the employer. It had entered into the LCA in good faith with a genuine desire to assist the grievor with regard to her disability. As employer counsel pointed out, the grievor benefited from that agreement. No doubt, it would be very frustrating that it finds itself unable to rely on the deal struck. However, despite the good faith and the lack of fault, the Human Rights Code as interpreted by the Courts must prevail. I have no discretion but to enforce the law.

It follows from the foregoing that the grievance must succeed. The employer is directed to reinstate the grievor forthwith and to compensate her for all losses that resulted from her termination. I remain seized in the event the parties have any dispute in implementing this decision.