GSB# 2006-1421

UNION# 2006-5111-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Norris)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Laurie Kent Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

March 12, 2008.

Decision

1The grievor commenced employment with the employer in 2000 as a casual customer service representative. In February 2004 she suffered an injury in another workplace. She was unable to return to work with this employer, even with accommodation, for about two years thereafter. At that point it appeared she could return to modified duties once a week starting May 12, 2006. On that day, and on her scheduled work day in each of four subsequent weeks, she called to say she could not attend work. On June 16, 2006 the employer terminated her employment for innocent absenteeism. She grieved.

The Facts

2The following account is based on the parties’ detailed written statement of agreed facts and supplementary oral testimony by the grievor. I have set out the facts in some detail to illustrate that up to the discharge decision itself the employer went to considerable effort to facilitate the grievor’s return the grievor to work.

3In February 2004 the grievor provided the employer with a doctor’s note dated February 13, 2004. It said that the grievor had had a fall and would be off work until further notice. Later reports indicated that the injury affected the grievor’s right hand, neck and back. Thereafter, the employer periodically asked the grievor to have her doctor complete its “Physician’s Report for Non-Occupational Injury” form (hereafter referred to as a “Physician’s Report”). That form asks (among other things) whether rehabilitation or treatment is still required, whether a complete recovery is expected, whether the patient can return to work without restrictions, what recommendation the physician has for work hours, and what functional limitations the patient has.

4In his first Physician’s Report form in April 2004, the grievor’s doctor stated that the grievor still needed treatment, that he could not say whether there would be complete recovery and that she could not return to work without restrictions. The report described quite severe functional limitations. In response to a similar request in August 2004, her doctor’s second Physician’s Report predicted a 6 to 12 month recovery period but otherwise said, as before, that the grievor was not then able to return to work at all.

5In September 2004 the employer wrote to the grievor as follows:

We are concerned about your continued absence from work since February 12, 2004. We note that Dr. Kurtz has indicated your restrictions on the August 12, 2004 Physician’s Report. Accordingly, we would like to advise that we are prepared to provide work accommodation to facilitate your return to work a soon as possible.

Your job duties can be restricted so as to avoid heavy lifting, repetitive bending/twisting and prolonged standing/sitting. Specifically, your job duties may include customer service, cashiering (with ergonomic stool available if required), facing and stocking shelves/displays (single bottles only at waist level and above), light housekeeping and clerical work as required. Your duties can be performed on a rotational basis and your lifting will be restricted to handling single bottles only approximately (2 to 5 lbs).

Please discuss the above-noted work accommodation with your treating physician’s and advise me accordingly with respect to your return to work.

The doctor responded with a note stating that the grievor was unable to return to work and that he could not provide a return to work date.

6In November 2004, the employer wrote the grievor again, asking for updated medical information and enclosing a blank Physician’s Report form for completion. When there was no response, the District Manager wrote to the grievor on January 10, 2005, reiterating the request and enclosing another blank Physician’s Report form. His letter emphasized the grievor’s obligation to provide medical information when requested. It warned her that if there was no response he would conclude she was no longer interested in employment with the LCBO and her employment would be terminated. In response, the grievor faxed the employer a Physician’s Report form apparently completed by her doctor on November 22, 2004, without providing any explanation of her delay in doing so.

7The employer then sought to meet with the grievor. In March 2005 it wrote to her requesting that she attend a meeting in mid April 2005. She did not attend. It wrote again in September requesting her attendance at a meeting later that month. She did not attend. The District Manager then wrote on October 3rd to advise her that the employer was assessing her employment in light of these failures to attend. He asked that she have her doctor respond to an enclosed form letter. The form letter asked the doctor whether the grievor was able to return to work with or without restrictions and, if not, what his opinion was about the likelihood of her return in the foreseeable future.

8The parties’ agreed statement of fact says

18. The Grievor claims that she did not receive the March 31, September 13 and the October 3, 2005 letters.

19. The Grievor informed the Employer on October 17, 2005 that she moved residence from Pickering to Scarborough.

The letter of October 3rd is marked “Via Purolator and Regular Mail.” There is no evidence before me about what, if anything, the employer learned from Purolator concerning delivery. Although a letter to the grievor in November states that another copy of the October letter was sent to the grievor after she was re-located, there is no agreement or evidence that that is true, and the grievor’s testimony that she did not receive it is uncontradicted.

9The employer then requested completion of a further Physician’s Report form. The doctor’s response indicated that as of late October 2005 the grievor could not return to work. The portion of the form that called for a prognosis for return to work was blank, but an added note stated that the grievor was going to be assessed by an orthopaedic surgeon concerning the possibility of surgery. The employer then faxed the doctor a request for clarification of the note, and for completion as well of an attached copy of the form letter first sent to the grievor with the undelivered letter of October 3rd. In conjunction with his clarification about the note on the Physician’s Report form, the doctor wrote on the form letter “If you want this completed I will but I feel it is not needed.”

10On November 4, 2005, the District Manager then wrote to the grievor asking for the date of her assessment with the orthopaedic surgeon and reminding the grievor that:

The LCBO advises that you have an obligation to respond to its correspondence, provide updated medical information in a timely manner, and cooperate in this process and that failure to do so in and of itself may result in disciplinary action up to and including termination.

There was no response until two months later, in early January 2006, when the grievor advised that she would be seen by the orthopaedic surgeon on January 18, 2006.

11On February 22, 2006, having heard nothing from the grievor about the outcome of the surgeon’s assessment, the employer once again wrote to the grievor asking that she have her doctor complete both a Physician’s report form and another copy of the form letter referred to in paragraphs [7] and [9] above.

12On this, as on some earlier occasions, the employer had to request clarification from the doctor of some cryptic or illegible handwriting in his response. From his response and clarification it appeared that, subject to a number of significant physical limitations, the Grievor could return to work one to two hours per week, increasing in one hour intervals to a maximum of 8 hours per week, starting the week of March 28, 2006. The limitations were that she could only walk short distances, with rest periods, no standing for more than 15 minutes, no sitting for more than 15 minutes, very limited bending and twisting, no lifting of more than 2.5 kg., and no ladder climbing.

13The employer asked the grievor to attend a meeting on March 23, 2006 with a union representative to discuss her return to work. At this meeting she added a limitation that she could not drive more than 15 minutes to work. After the meeting the employer found a store at which she could be accommodated, within 15 minutes drive of her home. In a letter to her dated April 26, 2006, the District Manager wrote the following:

As you are aware, Dr. Kurtz has indicated that you are now able to return to work. In stating you are able to work, he has indicated that you may begin with 1 – 2 hours/week increasing in one hour intervals to a maximum of 8 hours/week.

As a result of this information, you will be assigned to store 242, [contact information omitted]. Your first shift will be from 8:15 p.m. to 10:15 p.m. on Friday May 12, 2006. For further shifts, please contact the store directly.

Although you have some restrictions (as evidenced on the Physician’s Report), you indicated at our meeting of March 24, 2006 that you could work on cash with an ergonomic stool, face up the middle shelves, and stock the middle shelves with single bottles from a prepared cart. You indicated that you were uncertain whether or not you could face up lower shelves, or stock the lower and upper shelves from a prepared cart. When you arrive at the store, a Work Accommodation Program (WAP) will be reviewed with you by the store manager and you will be provided with applicable training given that changes have taken place in the stores during your absence.

I would ask that if your medical condition changes (including improving or deteriorating), and/or if the maximum number of hours you can work per shift and/or per week changes, that you advise me of these changes. If the LCBO hasn’t received any new information within three months after your return to work, then it will likely be communicating with you and may request further medical information and/or assessments.

The LCBO advises you, again, that you have an obligation to respond to its correspondence, provide updated medical information in a timely manner, and cooperate in any accommodation process. The LCBO has had difficulties previously communicating with you and receiving responses during your absence because you changed addresses without advising of your new address. I note that you again recently moved to the above-noted address, which was only brought to the LCBO’s attention during our meeting on March 24, 2006. If your address changes again, please advise your store manager as well as the district office of your new address and contact information.

14What happened thereafter is described this way in the parties’ agreed statement of facts:

32. The Grievor did not work May 12, 2006. She called the store manager and advised that she would not be reporting for work because she had re-occurrence in relation her back injury.

33. On May 19, 2006, the Grievor was again scheduled to work. She called the store and advised that she would not be reporting for work.

34. On May 26, 2006, the Grievor’s third scheduled shift, she called the store and advised that she would not be reporting for work.

35. [District Manager Ron] Scarcello wrote the Grievor a letter dated May 29, 2006 addressing her absences. The Grievor was requested to provide medical documentation in support of her absences and her ability to return to work in them foreseeable future. …

15Mr. Scarcello’s letter of May 29, 2006 said this:

I understand that the day of your first shift May 12, 2006, you spoke with the Store Manager and advised that you would not be reporting for work because your back was hurting. The Store Manager requested that you provide a doctor’s note in support of your absence and confirmed that you were scheduled for Friday, May 19, 2006. I confirm that to date you have not provided this information.

On Friday, May 19, 2006, you called the store, spoke with the Store Manager and advised that you would not be reporting for work. This time, you didn’t provide a reason. The Store Manager advised that you were scheduled for Friday, May 26, 2006. On Friday, May 26, 2006 you called and again advised that you would not be reporting for work.

While I can understand that you may feel some hesitation about returning to work after such a lengthy absence, the LCBO has taken steps to ease you back into the workplace. You have been assigned to a store that meets the driving restrictions you claim to have, you have been told that modified work and a modified work program will be provided to you to address your restrictions, and you have been scheduled for the limited hours that your doctor had stated.

Ms. Norris, the LCBO finds your conduct on May 12, May 19, and May 26, 2006 to be frustrating. In fact, these absences are contrary to Dr. Kurtz’s opinion that you can return to work, and the representations that you made during our March 24, 2006 meeting. Further, you haven’t provided any medical information in support of these absences as you had been directed.

In light of the above, the LCBO is skeptical that your absences on May 12, 19, and 26, 2006 were truly for medical reasons. Accordingly, the LCBO directs you to provide medical documentation in support of your absences for these three shifts and requires this information by Tuesday, June 6, 2006. Be advised that failure to provide this information may result in disciplinary action up to and including termination.

Furthermore, in light of your recent absences in combination with your absence since February 2004, the LCBO is again assessing your continued employment with it. Accordingly, the LCBO requires medical information about your ability to return to work, in the foreseeable future, especially in light of Dr. Kurtz’s Physician’s Report that indicated that you could return (a copy of which is attached), and requires this information by June 6, 2006. Upon receipt of this information, the LCBO will review it, assess your status and your continued employment with the LCBO.

I note that the employer apparently did not enclose with this letter blank copies of the forms that had been enclosed with previous requests for medical information.

16The parties’ agreed facts continue:

36. On June 2, 2006, the Grievor called the store and advised that she would not be reporting for work.

37. On June 9, 2006, the Grievor called the store and advised that she would not be reporting for work.

38. Medical documentation dated 2/2/6 was provided on June 6, 2006. It appears to be incorrectly dated. It stated “My patient was to RTW May 12. She has been unable to as a result of no real improvement in her back/neck chronic ongoing problems”.

39. The Grievor was terminated by letter dated June 15, 2006 … .

17After reciting the history up to the grievor’s scheduled return to work, the termination letter of June 15, 2006 said this:

From Friday, May 12, 2006, up to Friday, June 9, 2006, you have called into the store each week advising that you can’t report for your scheduled 2 hour shift. Sometimes reasons have been given, and sometimes they have not. In light of your absences, the LCBO wrote to you by correspondence dated May 29, 2006, advised that it was assessing your continued employment with it, and requested medical information about your ability to return to work in the foreseeable future.

In response, the LCBO was provided on June 6, 2006, with Dr. Kurtz’s medical note. In that note, it stated, “My patient was to RTW May 12. She has been unable to as a result of no real improvement in her back/neck chronic ongoing problems”. Although the LCBO requested information about your ability to return to work in the foreseeable future, this information was not provided to it. Instead, the LCBO is left with your absence since February 2004 and its efforts to return you to work.

Accordingly, and in regard to your absence since February 2004, the LCBO advises that it is terminating your employment effective immediately for innocent absenteeism.

18The grievance before me is dated August 18, 2006. The length of the period between then and January 2008, when the parties scheduled an arbitration hearing for March 12th, is unexplained. There is no evidence that the union gave the employer with any information about the grievor’s condition until February 27, 2008, when the union provided a note from the grievor’s doctor dated September 18, 2007. A more formal medical report dated March 3, 2008 was provided on March 7, 2008, less than a week before the hearing. Those documents were put before me subject to the employer’s objection that their contents are irrelevant in so far as they describe the grievor’s condition or prognosis subsequent to the date of termination.

19The doctor’s note of September 18, 2007 simply says “My patient may RTW at the liquor store [with] the same restrictions as before.” The pertinent portion of the medical report of March 3, 2008 says:

My patient has had chronic lumbar pain since 1991 with a re-injury in 1993 and 2004. She has had neck pain, headaches, shoulder pain and bilateral arm pain chronically and recurrently since 1993. She has had left sciatica and dorsal thoracic pain since her fall in 2004. She has had recurred flairs and been treated over the years by physiotherapy; she was assessed by the Rothbart Pain clinic in 2005 and Dr. M. Chapman also in 2005 for her sciatica. My patient was seen 8/8/06 for a right hand pain problem as Ms Norris was in a retraining program and the work required recurrent use. I have notes that state that Ms Norris “had been cut off her benefits” and she was having a money issue over her medication. I have no specific notation or memory of her stating that she was dismissed by the LCBO.

Ms Norris was seen again on 22/08/07, 18/09/07 and 28/02/07 [sic] for her general medical conditions. On the 18/9/7 Ms Norris would have requested the note that you must have that states that she could return to work at the LCBO with her previously documented restrictions. I am unable to comment on Ms Norris’ ability to work at the LCBO between 2/6/6 and 18/9/7 and I did not see her other that on 8/8/6 where my records indicate a retraining program without mention of the LCBO or her nursing work.

I hope this letter is sufficient for your needs but I can not specifically provide a ‘return to work’ date prior to 18/9/7.

20The grievor testified that as of March 2006 she had improved and was attending school with a “full case load.” When she met with the employer that month she thought she would be able to return to work. She stated that a week before her planned return on May 12th she had a re-occurrence with her back. She testified that when she has these re-occurrences they “sometimes start slowly” and “sometimes go away.” I took this to mean that her re-occurrences vary in intensity and duration. She testified that she decided to wait and see if this re-occurrence went away before her May 12th start date. When it did not, she called the store manager that day, told him that she had had a re-occurrence with her back and said she would call the following week. She further testified that she called the following week and left a message with a staff member that she would be off again because of re-occurrence. She said that the week after that she spoke to the Assistant Manager and told him she was still having issues with her back and could not attend work that day.

21The grievor testified that she then obtained and sent the employer the doctor’s note of June 2nd (incorrectly dated 2/2/6) to explain that her absences up to that point were caused by her condition. She received the employer’s letter of May 29th after she had visited her doctor and obtained that note. She testified that when she read the letter she did not understand that it required her to provide anything other than a medical explanation for her absences. Having sent that to the employer, she did nothing further. The next communication she received was the termination letter of June 15, 2006.

22The grievor testified that by the beginning of July 2006 she had improved again. She was going to school and was managing fairly well. She was attending the Rothbart pain clinic and seeing a doctor there weekly. These weekly visits continued to December 2006. She said she was in school full-time from July to December 2006, “managing a full case load.” After she finished school in May 2007 she was employed in a full-time contract position in Human Resources, the subject of her studies, until September 2007. She said she performed that job without taking any sick time. Asked to describe her current physical condition, she testified that she has a chronic, permanent disability but “right now” was “fine” and had been for a while. She said she had a re-occurrence in December 2007 that lasted a week. She testified that she has re-occurrences of different levels, some acute and some manageable.

23Asked why she had not obtained a doctor’s note after receiving the termination letter, she said she had not been asked for one and had been told (by the union) that the next process was the grievance process. In cross-examination she said she was not sure whether she had seen her doctor in early August 2006 as indicated in his report of March 3, 2008, but was prepared to accept that she had.

24The grievor acknowledged that the District Manager’s letter of April 26, 2006 (paragraph [12] above) had instructed her to advise him if her condition improved or deteriorated. She admitted that she had not done that when she suffered the re-occurrence in May 2006.

25The grievor also acknowledged that the District Manager’s letter in February 2006 requesting the doctor’s answers to questions about her condition and prognosis had said “the LCBO is assessing your continued employment with it.” She said she had not understood this to mean that her status as an employee was in jeopardy: she had thought this was just about “keeping up with the paperwork or whatever.”

26The grievor’s attention was directed to the letter of May 29th (paragraph [14] above) in which the last paragraph but one asked for “medical documentation in support of your absences” and the last paragraph asked for “medical information about your ability to return to work, in the foreseeable future.” She acknowledged that both paragraphs had asked for information, but reiterated that at the time she received it she thought the letter was just asking for information to explain the absences. She also said she had not understood the words the final words of the final paragraph ­– “Upon receipt of this information the LCBO will review it, assess your status and your continued employment with the LCBO” – to mean that the employer was considering whether or not she would continue to be a casual employee.

The Issues

27The parties agree that innocent absenteeism will be cause for discharge if the employee’s absenteeism has been excessive and there is no reasonable expectation that it will improve. The union concedes that the grievor’s absence for over 28 months was excessive absenteeism for purposes of this test. Arguments focused on the following issues:

• whether in determining the issue of cause I should assess the prospects for improved attendance as at the date of termination or the date of hearing,

• whether I have a discretion under subsection 48(17) of the Labour Relations Act (“the LRA”) to relieve against discharge for innocent absenteeism and, if so, whether I should do so in this case,

• whether the employer was obliged to warn the grievor that her employment was in jeopardy and, if so, whether it did so adequately, and

• whether the discharge was inconsistent with the employer’s obligation to accommodate the grievor’s disability.

28Employer counsel argued that on the evidence available to the employer at the time of termination there was no reasonable expectation that the grievor could provide reliable attendance in the foreseeable future. After being totally unable for two years to return to any work, she had been unable to return even for the limited hours and light duties her doctor had recommended in February 2006, there having been, in her doctor’s own words, “no real improvement.” The grievor had been asked to provide medical information about her ability to return to work in the foreseeable future, and had provided none.

29Employer counsel emphasized the right of an employer to terminate the employment of an employee who is simply unable to meet her obligation to perform work, citing Re United Automobile Workers and Massey-Ferguson Ltd. (1969), 1969 CanLII 1458 (ON LA), 20 L.A.C. 370 (P. C. Weiler). She submitted that it is implicit in the Supreme Court’s analysis in Syndicat des Employes de l’Hôpital Général de Montréal v. Centre Universitaire de Santé McGill, 2007 SCC 4, [2007] 1 S.C.R. 161, (2007) 159 L.A.C. (4th) 1 (S.C.C.) that such a right is not inconsistent with an employer’s obligation to accommodate disability. She argued that in determining whether there was cause for discharge an arbitrator must look at the circumstances as they existed at the time of discharge, and that evidence of improvement in the grievor’s condition or prognosis at a later date is not relevant for this purpose, citing Cie minière Quebec Cartier v. Quebec (Grievances arbitrator), 1995 CanLII 113 (SCC), [1995] 2 S.C.R. 1095 and Re Petro-Canada and Communications, Energy and Paperworkers Union, Local 593 (2003), 2004 CanLII 94701 (ON LA), 129 L.A.C. (4th) 353 (Craven).

30Employer counsel argued that in a case of innocent absenteeism such as this an employer has no obligation to warn the grievor that continued absence might result in termination and, in the alternative, that any such obligation had been met by the statements in its letters of February 22 and May 29, 2006 that it was “assessing your continued employment with it.” Reference was made to Re Atomic Energy of Canada Ltd. (Chalk River Nuclear Laboratories) and Office & Professional Employees International Union, Local 404 (1982), 1982 CanLII 5136 (CA LA), 5 L.A.C. (3d) 248 (Saltman), which counsel noted was a case of pattern absenteeism rather than continuous inability to attend work.

31Employer counsel submitted that the subsection 48(17) of the LRA only gives an arbitrator the power to set aside a discharge for which cause has been established if the discharge was disciplinary but not if, as here, it is a non-disciplinary response to innocent absenteeism, citing Re Ontario (Liquor Control Board) and O.L.B.E.U. (Pluska) (1996), 1996 CanLII 20337 (ON GSB), 54 L.A.C. (4th) 193 (Roberts).

32Employer counsel also referred to Re Regional Municipality of Hamilton-Wentworth and Canadian Union of Public Employees, Local 167 (1996), 1996 CanLII 20257 (ON LA), 52 L.A.C. (4th) 141, where at page 152 Arbitrator Sargeant observed that evidence about the prognosis for regular future attendance must be clear and cogent, and that the grievor’s own assessment that a medical problem has been resolved may be insufficient in the absence of supporting expert testimony. She noted that the only expert medical evidence before me relates to the grievor’s ability to return to work as of September 2007, three and a half years after her absence began.

33Union counsel argued that the employer had acted prematurely: before discharging the grievor it had failed to gather sufficient information about the likelihood that the grievor could attend work in the future. Among other things, it failed to discuss its concerns with the grievor before acting on them. She observed that the doctor’s note explaining the grievor’s absences did not say she could not return to work in the foreseeable future. She submitted that if that note was unsatisfactory the employer could have followed up and sought more information rather than simply terminate the grievor. She noted that the employer has the right under the collective agreement to require an independent medical examination in absenteeism cases (Article 31.8(a)), but did not do so. She submitted that the failure of the first attempt to return the grievor to work did not justify discharge for innocent absenteeism, that there should have been more than one attempt to return her to work before considering termination.

34Union counsel submitted that the employer had failed to warn the grievor that her continued absence put her employment in jeopardy, and that the correspondence referred to by employer counsel in this connection was insufficient in that regard. Counsel cited Re Denison Mines Ltd. and United Steelworkers (1983), 1983 CanLII 4935 (ON LA), 12 L.A.C. (3d) 364 (Adams) – including the quotation at page 371 from an unreported award of Arbitrator M. G. Picher – for the proposition that there must have been a clear warning before employment can be terminated for innocent absenteeism. Re Westcoast Cellufibre, Division of Howe Sound Pulp & Paper and I.W.A. Loc. 1-217 (1991), 1991 CanLII 13474 (BC LA), 21 L.A.C. (4th) 278 (Kelleher) and Re Universal Handling Equipment Co. and U.S.W.A. Loc. 7204 (1991), 1991 CanLII 13327 (ON LA), 21 L.A.C. (4th) 11 (Rose) were also cited in this regard.

35Union counsel urged me to consider the grievor’s testimony that her difficulty with attendance in May and June 2006 had been a temporary re-occurrence and that she had been better again in July 2006. She acknowledged that the grievor’s prognosis as of June 2006 is not addressed in the grievor’s doctor’s note of September 2007, nor in his report of March 2008. She observed, however, that they show she is currently capable of returning to accommodated employment. She argued that I should take that into account in determining whether to allow the grievance and reinstate the grievor.

36In that regard union counsel submitted that the date of hearing is the appropriate date for determining the likelihood of future attendance, citing Re Canada Post Corporation and Canadian Union of Postal Workers, (1982) 1982 CanLII 5019 (CA LA), 6 L.A.C. (3d) 385 (Burkett) to that effect. She also submitted that the grievor’s present ability to return to work can and should be taken into account in exercising the discretion afforded me by subsection 48(17) of the LRA. She referred in that regard to Re Natrel Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Loc. 674 (Patterson) (2004), 2004 CanLII 55036 (ON LA), 134 L.A.C. (4th) 142 (Albertyn) at para 28. She cited Re Alcan Smelters and Chemicals Ltd. and C.A.W., Loc.2301 (1996), 1996 CanLII 20278 (BC LA), 55 L.A.C. (4th) 261 (Hope) for the proposition that where discharge is based on a presumption that past attendance problems will continue, post discharge evidence of recovery from the condition that caused past attendance problems may be considered to refute the presumption, and that such an approach is consistent with the Supreme Court’s decision in Quebec Cartier.

37Union counsel also argued that absent any evidence that simply waiting to see if the grievor got better involved some cost to the employer, the employer’s obligation to accommodate the grievor’s handicap required that it wait and see, citing Re Masonite International Corp. and U.B.C.J.A. Loc. 1072 (Ganeshamoorthy), (2007) 161 L.A.C. (4th) 426 (Reilly), Re Integrated Messaging Inc. and U.F.C.W. Loc. 832 (Lambert-Ward) (1999), 1999 CanLII 35975 (MB LA), 84 L.A.C. (4th) 221 (Wood) and Centre Universitaire de Santé McGill, supra.

Analysis

38After providing regular service to the employer for four years, the grievor suffered an injury away from the workplace that severely restricted her physical capacity to function within it. The injury resulted in the sort of disability from which some recovery may be possible, but only with time and at some cost to the employee in pain and effort. Generally speaking, the longer an employee with an injury of this sort is away from the physical challenges of attending at a workplace and performing at least some work, the harder her rehabilitation and return to productive work may become.

39Prior to the discharge decision itself, the employer made a commendable effort to assess on an ongoing basis her capacity to return to work with or without accommodation. It did not wait for her to seek accommodation, but offered it at an early stage. When it appeared that she might be able to return to quite restricted hours and duties, it made the effort to create and offer her the opportunity to do so.

40More than once the grievor failed to respond promptly or completely to the employer’s requests for information. The most egregious example of this occurred when she was asked for and apparently obtained a Physician’s Report in November 2004, but failed to forward it to the employer until after it made a second request in January 2005. It was only then that she sent the November report to the employer, without giving any explanation for the delay.

41The grievor also moved at least once without informing the employer of her new address. She was instructed in April 2006 to inform the District Manager if there was any change in her ability to attend and perform the accommodated work that had been arranged for her, yet failed to do so when she suffered a re-occurrence a few weeks later. Then, week after week, for five successive weeks, she waited until her one scheduled day of work before attempting any contact with the store to which she had been assigned, to let someone know she would not be coming in that day. There is no agreement that she gave any explanation for these absences after the first. Although she testified that she gave the same explanation about re-occurrence to a store employee on the second occasion (May 19th) and to the Assistant Manager on the third (May 26th), she gave no such testimony about her calls on the fourth and fifth occasions (June 2 and 9, 2006).

42I can understand the employer’s having had the suspicion expressed in its letter of May 29, 2006. I can also understand the frustration its decision makers must have felt by the time they sent the termination letter of June 15th, having had no explanation for the events of the previous weeks other than the brief doctor’s note it received June 6, 2006, and no response to its request for an updated prognosis for return to work. The evidence, both pre- and post-discharge, gives me concern about willing and committed the grievor was and may now be to do what she can and should do to maintain her casual employment with this employer.

43Understandable as the employer’s suspicion and frustration were, however, they were not the basis on which it chose to discharge the grievor on June 15, 2006. The alleged cause on which it acted was innocent absenteeism. The “justness” of that discharge must be assessed on that basis.

44The basis on which an employee may be discharged for innocent absenteeism is explained in general terms in Brown and Beatty, Canadian Labour Arbitration (4th edition), at ¶7:6100:

When employers are faced with employees who, as a result of some infirmity or incapacity, are unable either to report for work on a consistent and regular basis or to perform the tasks expected of them, arbitrators have not left them without any remedy. To the contrary, in the absence of any limitations in the collective agreement, they have recognized the employer’s right to insist on the benefit of its bargain and to require the employee to render those services which the agreement anticipates she will perform in return for her remuneration. Most fundamentally, where it can be established that (i) an employee’s record of past absences is excessive and (ii) that there is no reasonable expectation that it will improve in the future then, unless the employer has waived its rights, and so long as it will not deprive those who are handicapped of their rights to sickness, disability and related benefits more than others, nor of their right not to be discriminated against that is guaranteed in both the Constitution and human rights legislation, employers can terminate their services on the grounds of innocent, non-culpable absenteeism.

[emphasis added, footnotes omitted]

45Arbitrators have described the second part of the two-part test in a variety of ways.¹ They have also expressed a range of views about what “onus” that part of the test imposes, which party bears that onus and what must be proven to shift it from that party to the other. Differences in arbitrators’ statements on those issues may be more than merely semantic, and may not be entirely the result of differences in the circumstances in which they were made. Those variations were not a particular focus of the parties’ arguments in this case, however. For purpose of this case I think it is sufficient to say that the applicable test is as set out in the passage quoted in paragraph [44] above, bearing in mind that one must take the employer’s obligation to accommodate disability, and the employee’s obligation to facilitate accommodation, into account in applying it. The employer bears the onus or burden of proof, in the sense that the test will not be satisfied if there is insufficient evidence from which one could reasonably conclude that there is no expectation that attendance will improve in the future.

46Applying the second part of the test involves making a prediction about the future. When a prediction about the future is assessed some time after it was made, there is a natural inclination to take into account what has occurred since. This is particularly so if the primary concern is whether the prediction was actually “right” or, at least, consistent with what one would now predict in light of the additional data that has become available in the meantime. The inclination may have to be resisted, however, if the proper concern is only whether the prediction was “reasonable” having regard to the information available at the time it was made, and not whether, in retrospect, it was actually right or wrong.

47Before the Supreme Court’s decision in Quebec Cartier,² arbitrators disagreed about whether the question posed by the second part of the test should be answered as of the date of discharge or the date of the hearing at which the discharge is reviewed. In Quebec Cartier, the Supreme Court of Canada held that in assessing the discharge of an employee whose ability to fulfil his workplace duties had been impaired by an alcohol, the question “whether any improvement in this respect was likely in the foreseeable future”³ had to be determined as of the date he was discharged for absenteeism. The court said that to hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator. It added that evidence about post-discharge events can only be considered to the extent it is relevant to the issue had hand, that is, “if it helps shed light on the reasonableness and appropriateness of the dismissal under review at the time it was implemented”⁴ (emphasis added).

48As Arbitrator Albertyn noted in Natrel Inc.,⁵ the Supreme Court seemed to change its approach to post-discharge evidence in the Bhadauria case.⁶ There, the Court was critical of an arbitration award for ignoring the grievor’s post-discharge behaviour in coming to a conclusion about whether or not the behaviour for which the grievor had been discharged had been temporary in nature. In its explanation of the relevance of the post-discharge conduct to the question whether there had been cause for the discharge in issue, the court quoted the passage from Quebec Cartier set out at the end of the previous paragraph, but notably omitted the reference at the end to the time of the discharge.

49While Quebec Cartier seems to say that adequacy of the prediction on which the discharge decision was based must be reviewed on the basis of what the employer knew or should have known at the time, Bhadauria seems to require that post-discharge events be taken into account in making or reviewing a predication on which the existence of cause for that discharge depends. At least one arbitration award finds in all this a distinction between evidence that challenges (or, presumably, supports) the prognosis on which the decision to discharge was based and evidence that challenges (or, presumably, supports) the diagnosis on which the prognosis was based, holding that post-discharge evidence is admissible only with respect to the latter.⁷ Given the close relationship between diagnosis and prognosis, that distinction seems easier to state than apply, particularly in the case before me.

50In any event, if the second part of the test for cause is not satisfied by what the employer knew or should have known at the date of discharge, without regard to post-discharge events, then it is unnecessary to resolve the parties’ debate about the relevance of post-discharge events.

51When the employer discharged the grievor it knew that for the first two years after back injury she had been unable to work as a result. It also knew that by the end of those two years her doctor had concluded she could return to work with restrictions. The grievor had not returned as anticipated thereafter. This was purportedly due to difficulties with her back, although this was not entirely clear and the employer was initially suspicious about the claim.

52There were two important things that the employer did not know when it decided to discharge the grievor. It did not know what the grievor’s treating physician (or, indeed, any physician) thought about the likelihood that she could provide regular attendance at suitably modified duties in future. And because it had not warned her that continued absence from work would put her employment status in jeopardy, it did not know what effect such a warning might have on her attendance in future.

53In its letter to her of May 29, 2006, the employer asked the grievor for two things: medical documentation in support of her absences for the three shifts she had missed that month, and medical information about her ability to return to work in the foreseeable future. After sending the letter it received a doctor’s note. It is not apparent whether it understood that the grievor had obtained that note before she received its letter. The note seemed to ascribe the absences to the grievor’s ongoing back problems, but said nothing about her ability to return to work in the foreseeable future. It stated that the grievor had been unable to return to work “as a result of no real improvement in her back/neck chronic ongoing problems.” In addition to being ungrammatical, this was ambiguous. In what time frame had there been “no real improvement?” If the doctor’s reports prior to the return to work meeting were to be believed, there had been an improvement in the two years since 2004, one that had been sufficient to allow a cautious, gradual return to restricted duties that had not been possible earlier. Was he contradicting those reports, saying that in reality there had been no real improvement since the injury? Or was he saying that there had been “no real improvement” since the re-occurrence that the grievor had reported to the store manager? This was not the first time that a note from her doctor had been unclear or inadequate. On prior occasions the employer had brought the inadequacy and the need for more to the attention of the grievor and/or the doctor. This time it did not. It is not clear why.

54In any event, and whatever they may demonstrate about the grievor’s uncooperativeness, these shortcomings of the doctor’s note and of the grievor’s response to the letter of May 29th were not themselves evidence that there was no reasonable expectation that her attendance would improve in the future. If the jurisdiction afforded by subsection 48(17) of the LRA is only available when a discharge is “disciplinary,” as the employer argues, then it is important to resist any temptation to treat an employee’s failure to provide a prognosis, for which discharge would be presumptively disciplinary, as though it were the equivalent of the sort of unfavourable prognosis on which cause for non-disciplinary discharge for absenteeism could be based.

55Statements in the letters of February 22 and May 29, 2006 that the employer was “assessing your continued employment with it” were made in the context of discussions about when and to what duties the grievor could return to active work. In that context, those statements did not give the grievor notice that continued absence from work, even though due to her medical condition, would jeopardize her status as an employee.

56Some awards give the impression that the employer must have given such a prior warning in addition to satisfying the test quoted earlier at paragraph [44], before innocent absenteeism can be cause for discharge. That is the impression created, for example, by the following passages from Re Atomic Energy of Canada Ltd. at pages 253-4:

Accordingly, the company has proven that the grievor failed to attend work regularly in the past and that in all likelihood she will be incapable of regular attendance in future. Nevertheless, the union challenged the company’s right to discharge her since it submitted that the grievor had not been given adequate warning that her job was in jeopardy. The board would agree that an employer cannot terminate an employee without a warning that the employee’s job is in jeopardy. It simply would be unfair to terminate an employee without bringing to the employee’s attention the employer’s concerns in this regard and giving the employee a chance to improve: Re Int’l Assoc. of Machinists, Lodge 1703, and Perfect Circle -- Victor Division, VNG Auto Parts Ltd. (1972), 1972 CanLII 2003 (ON LA), 24 L.A.C. 380 (Weiler).

In the board’s view, there is no basis for complaining that the grievor had not been warned adequately that her job was in jeopardy. … On any realistic view of the matter, the grievor knew that her job was in jeopardy. If she was lulled into a false sense of security, it was without foundation.

Accordingly, since the company has proven that the grievor is incapable of regular attendance and is unlikely to improve in future, the grievance must be dismissed.

57In my view, the question whether the employee has been suitably warned (or informed, to put it more neutrally), is not a requirement separate from the test, but an integral part of an assessment, for purposes of the test, of the likelihood that attendance will improve in future. In that regard I agree with these observations of Arbitrator M. G. Picher:⁹

We turn to the question of adequate warning. There is something of an anomaly in suggesting that an employee should be warned that further absenteeism due to illness will result in his or her discharge. To the extent that the culminating medical problem is a bona fide illness beyond the power of the employee to prevent there is little or no use in a warning. But that will not always be the case. Sometimes a warning will be appropriate, particularly where absenteeism due to illness is based in part on the failure of an employee to exercise due precaution or obtain the medical attention that will correct his or her problem or prevent its recurrence. Moreover, not all employees have the same will power to work with the discomfort of certain minor illness. The discomfort may be made more or less tolerable through medication or through extra personal fortitude. Thus, a warning is appropriate in that it will allow an employee in certain circumstances to improve his or her attendance record by exercising greater precaution, obtaining the proper medication or choosing to tolerate certain minor illness or discomforts which might otherwise have kept them home.

Lastly, apart from the practical value of a warning, there is a valid equitable consideration to justify the requirement of a warning when management is contemplating the discharge of an employee for blameless absenteeism. In so far as absenteeism for medical reasons can be controlled or mitigated by an employee, it would be unfair for management to allow an employee to be lulled into a false sense of security by management’s continued failure to deal with the employee’s absenteeism extended continuously over the course of several years. Also, out of simple human consideration it is desirable that an employee who has given long service to an employer be given some notice of the fact that their employment will be jeopardized by future involuntary and blameless absenteeism. We therefore agree with counsel for the union that some warning or notice to the grievor was appropriate and necessary in the circumstances of this case.

58It is important to bear in mind that “innocent absenteeism” can describe a range of circumstances. At one end of the spectrum are cases involving a continuing, prolonged, constant or near-constant absence due to a single underlying cause or set of causes that leave the employee entirely powerless to fulfill his or her employment obligations, with or without accommodation. At the other are recurring, intermittent unpredictable absences of short duration, the causes of which are varied or uncertain. In one of the seminal awards on discharge for innocent absenteeism, Arbitrator Paul Weiler made these observations about the latter sort of absenteeism:¹⁰

There is another reason for the necessary power of termination in this kind of case -- the extreme difficulties of proof by the company that the absenteeism is not bona fide and innocent. If an employee is constantly missing a few days work, it will be because of minor ailments and pains whose existence is very subjective. If an employee says he has a headache or sore back, and that he is not able to come to work, it is impossible to verify either the existence of any trouble or, certainly, its degree of severity. There is really no alternative to believing what the employee says. It is this arbitrator’s experience that doctor’s certificates, especially the large majority which follow a mere telephone diagnosis, are equally useless as verification. The company may discipline with a light penalty if it finds out an employee has missed a day without good reason. However, it just does not have the resources to be constantly checking on employee’s stories and building a record against any one of them. Hence, it must finally rely on the objective facts of the absenteeism and, if it cannot be expected to cease or at least come within the range of reasonable expectation for the employees, it must have the right to discharge the employee.

In the circumstances just described, at least, an employer’s past and ongoing willingness to treat an employee’s absences as “innocent” clearly cannot be determinative of the question whether something could be done by the employee to improve his or her attendance in future.

59An employer’s failure to inform the employee that continuing “innocent” absenteeism could lead to discharge may be of no consequence if it is very clear that there was truly nothing the employee could have done to improve her attendance in response to such information. There can be no presumption, however, that an employee whose absenteeism has been treated as “innocent” could not provide improved attendance in future if informed that discharge might be the non-disciplinary consequence of not doing so. This caveat is not limited to cases of repeated, sporadic absenteeism of which the causes are varied or uncertain. An employee whose absences, sporadic or continuous, are the result of an identifiable chronic medical condition may be able to improve the prospects of acceptable future attendance by making choices among options concerning treatment, forms of rehabilitation, endurance of pain, life style away from work and so on. This is relevant to the application of the test even though these are all options from among which no choice could be treated as blameworthy or otherwise the proper subject of discipline. It is only fair to provide the employee with notice of the employer’s concerns and the possible consequences in a timely manner, so she can make such choices on an informed basis before her capacity for future attendance is judged. Until she has had such notice and an opportunity to act on it, her past absenteeism is unlikely to be a reliable basis for a prediction about her future attendance.

60There having been no such notice given at any time before the date she was discharged, the grievor’s past absences were not then an adequate basis for any conclusion, one way or the other, about whether satisfactory attendance could be expected in future. As I have already noted, the absence of a medical prognosis did not support a non-disciplinary discharge at that time either. Indeed, the absence of such a prognosis was a further inadequacy in the basis for the employer’s prediction. Assessing the matter as at the date of discharge and without regard to post-discharge events, as the employer contends I should, I am not persuaded that on June 15, 2006 there was cause for discharge of the grievor for innocent absenteeism.

61Accordingly, it is unnecessary to resolve the parties’ debate about the relevance of post-discharge evidence to an assessment of cause or the applicability of section 48(17) of the LRA if cause is found. I will, however, make one comment on the latter point. Vice-Chair Roberts’ decision in Pluska¹¹ does not unequivocally support the employer’s contention that subsection 48(17) cannot apply to a discharge for “innocent absenteeism.” The case before him concerned absenteeism due to alcoholism, and he expressly declined to rule on whether the equivalent provision of the legislation that then governed proceedings before this Board could be applied to such a discharge. He acknowledged that the provision was restricted to mitigating disciplinary penalties, including disciplinary dismissals. He was reluctant, however, to accept that discharge for absenteeism due to alcoholism must be considered non-disciplinary for this purpose. In light of the existing jurisprudence and what he called “the enigmatic nature of alcoholism,” he speculated that dismissals for absenteeism due to alcoholism might properly be considered to be disciplinary in nature for the purpose of invoking the statutory discretion. He observed that such an approach was also favoured by “the apparent absurdity of applying the shield of statutory authorization to reinstate a rehabilitated employee who was dismissed for theft caused by a gambling addiction or alcoholism but not to one who was dismissed for absenteeism due to alcoholism.” I share the concerns expressed by Vice-Chair Roberts. I believe one should be cautious about the use of “disciplinary/non-disciplinary” and “culpable/non-culpable” distinctions in the context of assessing a discharge for anticipated behaviour over which the employee may have some control, albeit within a range in which it would be unseemly to ascribe blame to any particular choice.

Result

62The grievance is therefore allowed. By way of remedy the union seeks only that the employer reinstate the grievor’s status as a casual employee, without loss of seniority. I so direct. I remain seised with any issue the parties are unable to resolve concerning the implementation of that direction (but not, to be clear, with any dispute that may arise after employee status is restored concerning, for example, return to active duties and accommodation in that regard).

63There is no claim for compensation for lost wages. I should say that I would not have been inclined to award any such compensation on the evidence before me. Until a few weeks before the hearing, the last information the employer had from the grievor was that her doctor considered her unable to perform any work. Having taken the position that her employment had not been effectively terminated, the grievor had an ongoing obligation to inform the employer when her doctor determined she was again capable of working, and with what restrictions. She did not do that until a few weeks before the hearing. What she provided then was perfunctory. It is not at all obvious why “the same restrictions as before” should still pertain in light of the grievor’s activities since June 15, 2006. I would add that it is concerning that the medical report provided less than a week before the hearing makes no reference at all to those activities as a consideration in forming the opinion expressed. In all the circumstances it was not unreasonable for the employer to defer seeking clarification of the basis of the note (and subsequent opinion) and any other information it might need to determine whether it could return the grievor to work, until it knew whether the outcome of the hearing would oblige it to consider those matters.

64I have already noted that my decision does not resolve the parties’ debate about the relevance of post-discharge events and the applicability of subsection 48(17) of the LRA in cases of discharge for “innocent absenteeism.” I should also note that it does not determine, one way or the other, whether the grievor can or should be returned to work with the same restrictions as were contemplated in March 2006, nor whether the accommodations that the employer was prepared and apparently able to provide at that time can or must be provided now, either on a long-term basis or at all. I have only determined that the grievor retains her status (including seniority rights) as a casual employee. She would be well advised to take her obligations as an employee seriously if she wishes to retain that status.

Footnotes

1. 1Many of the formulations, positive and negative, are quoted in Re Integrated Messaging Inc. and U.F. C. W. Loc. 832 (Lambert-Ward) (1999), 1999 CanLII 35975 (MB LA), 84 L.A.C. (4th) 221 (Wood).
2. 2Cie minière Quebec Cartier v. Quebec (Grievances arbitrator), 1995 CanLII 113 (SCC), [1995] 2 S.C.R. 1095
3. 3Id., ¶12.
4. 4Id., ¶13.
5. 5Re Natrel Inc. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Loc. 674 (Patterson) (2004), 2004 CanLII 55036 (ON LA), 134 L.A.C. (4th) 142 at ¶26.
6. 6Toronto (City) Board of Education v. O.S.S.T.F., District 15 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, (1997), 144 D.L.R. (4th) 385.
7. 7Re Petro-Canada and Communications, Energy and Paperworkers Union, Local 593 (2003), 2004 CanLII 94701 (ON LA), 129 L.A.C. (4th) 353 (Craven).
8. 9Automatic Electric (Canada) Ltd. and Int’l Union of Electrical, Radio & Machine Workers, Local 526 (1978, unreported) at p. 8, quoted in Re Denison Mines Ltd. and United Steelworkers (1983), 1983 CanLII 4935 (ON LA), 12 L.A.C. (3d) 364 (Adams) at pp. 370-1.
9. 10Re United Automobile Workers and Massey-Ferguson Ltd. (1969), 1969 CanLII 1458 (ON LA), 20 L.A.C. 370 (P. C. Weiler) at page 372.
10. 11Re Ontario (Liquor Control Board) and O.L.B.E.U. (Pluska) (1996), 1996 CanLII 20337 (ON GSB), 54 L.A.C. (4th) 193.
11. 8Re Atomic Energy of Canada Ltd. (Chalk River Nuclear Laboratories) and Office & Professional Employees International Union, Local 404 (1982), 1982 CanLII 5136 (CA LA), 5 L.A.C. (3d) 248 (Saltman),