GSB#2013-1564

UNION#2013-0290-0027

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bartolotta)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Mary Lou Tims

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 26, March 17, June 17, August 13, September 15, October 2, October 7 & October 31, November 7, 2014

SUBMISSIONS

January 21, January 30, 2015

Decision

1There are three grievances before the Board filed by Mr. Carmen Bartolotta. One of these, dated July 3, 2013, challenges the Employer’s decision to terminate his employment, asserting in part a violation of articles 2, 3 and 21.1 of the collective agreement.

2The parties agreed to proceed first with the termination grievance, with the understanding that evidence heard in this matter will be considered and relied upon when hearing and determining the other two grievances.

3There were no objections regarding the Board’s jurisdiction or the arbitrability of the termination grievance.

4The following provisions of the parties’ collective agreement were referenced in these proceedings:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to . . . discipline, dismiss or suspend employees for just cause;. . . shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

ARTICLE 3 – NO DISCRIMINATION/EMPLOYMENT EQUITY

3.1 There shall be no discrimination practised by reason of . . . disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

ARTICLE 21 – DISCIPLINE AND DISMISSAL

21.1 It is understood that the right of the Employer to discipline or dismiss employees shall be for just cause. The Employer’s right to discipline or dismiss is subject to the right of an employee to grieve such action.

ARTICLE 44 – SHORT TERM SICKNESS PLAN

44.1.1 Until March 31, 2013, an employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows:

(a) with regular salary for the first six (6) working days of absence,

(b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty- four (124) days of absence,

in each calendar year.

44.1.2. Effective April 1, 2013, an employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows:

(a) with regular salary for the first six (6) working days of absence,

(b) with sixty-six and two thirds percent (66 2/3%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year; or

(c) notwithstanding 44.1.2.(b), with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days, of a certificate of a legally qualified medical practitioners is forwarded to the employee’s manager. . . .

THE EVIDENCE

5The grievor was employed as a Youth Services Officer (“YSO”) at the Roy McMurtry Youth Centre (“RMYC”) from 2009 until July 3, 2013, at which time his employment was terminated based on “innocent, non-culpable absenteeism and frustration of the employment contract.”

6The evidence in these proceedings was lengthy, heard over the course of several days. The Employer called as witnesses Roger Chouinard, Injury and Illness Specialist with the Attendance Support Management Office, Employee Relations Division at the time of these proceedings and Staff Services Manager at RMYC at the time of the relevant events, Danielle Theriault, Scheduling Manager at RMYC, Joshua Delegarde, Youth Services Manager at RMYC and Kevin O’Brien, Youth Centre Administrator, RMYC. The grievor gave evidence for the Union.

7The undisputed evidence before me was that the grievor was a good employee when he was able to be at work. He described himself as a “good officer,” and as the “very best” YSO on his unit.

8There is no dispute that the grievor suffers from a chronic degenerative back condition and that this has been the case for many years. A 2010 Radiology report entered in evidence notes that “multilevel degenerative disc disease is identified.” As of October 2014 when the grievor testified in these proceedings, he was 40 years old and he recalled that his back condition had plagued him since his early teenage years. He stated that it was not “as bad” in his younger years. The parties agree that the grievor’s back condition is a disability within the meaning of the Human Rights Code (“the Code.”)

9The grievor described how his back condition affected him during the years 2009 – 2013. He testified that he experienced debilitating and radiating back pain and that “flare-ups” of such pain left him incapacitated and bedridden. His pain affected his mood and mental alertness, and left him chronically fatigued. Such flare-ups of pain were unpredictable in their timing. The grievor testified that his pain sometimes dissipated over a “couple of days,” and sometimes was a “24 hour thing.” There is no dispute that he only “booked off sick” when he was in fact suffering from debilitating pain that prevented him from working.

10The evidence established that the grievor used 310 sick days between 2009 and July 2013. The Employer does not contest the Union’s assertion that, with the exception of a period following a 2010 WSIB injury, the grievor’s absences were largely caused by his disability. The Employer was aware of this during the relevant period. The Union put to Mr. Chouinard in cross-examination that the grievor’s evidence would be that from October 2012 to the time of termination, “virtually all” of his sick days resulted from disability, and that this was in fact consistent with the experience prior to October 2012. Mr. Chouinard did not dispute this.

11Mr. Chouinard gave evidence with respect to the grievor’s attendance record between 2009 and July 2013 as well as the average use of sick time at the facility at the time. The Union accepted that the grievor had a “high level of absenteeism” and that his absenteeism over some years was “significantly more than the institutional norm.” It questioned the relevance, however, of much of the Employer’s evidence and took the position that the determination of whether absenteeism due to disability was “excessive” is not one properly made on simply an arithmetical basis. While the Union thus disputed the conclusions drawn by the Employer from the attendance figures, it accepted the accuracy of the statistics set out below:

Year Grievor’s Use of Sick Time Average use of sick time at RMYC

2009 24 days 21.952 days

2010 106 days 14.084 days

2011 54 days 17.196 days

2012 92 days 19.039 days

2013 34 days as of July 3 13.671 based on data to end of Oct.

12Mr. Chouinard also addressed the grievor’s attendance between October 2012 and July 2013 specifically. Again, although the Union challenged the relevance of such numbers, it accepted the accuracy of the following figures:

of regularly scheduled shifts Sick time as a % of total regular scheduled shifts

First 90 day review period 47 17% (8 of 47)

Jan. 23 – Feb. 21, 2013 15 60% (9 of 15)

Second 90 day review period 45 28.9% (13 of 45)

May 22 – June 24, 2013 17 64.7% (11 of 17)

Total 124 33.1% (41 of 124)

13Counsel also stipulated as follows:

(i) For the period since the start of the ASMP to December 31, 2013, Mr. Bartolotta had the highest total number of shifts for which he was absent out of any employees at Roy McMurtry Youth Centre, excluding employees who were receiving LTIP benefits. For the Employee who was in receipt of LTIP benefits, her absences from 2009 to 2012 were 4, 19, 112, and 139 respectively, for a total of 274 absences. She was placed on LTIP effective October 1, 2012.

(ii) For all other employees in the period from the start of the ASMP to December 31, 2013, the top five employees in absence totals are: 208, 166, 161, 158 and 153. These are the absences represented in the Attendance Tracking System for RMYC, and include both disability-based and WSIB absences.

(iii) For these five employees, they were below Mr. Bartolotta’s absence total for a given year for at least four years out of the five year period. For example, the employee who had 208 total absences had 110 in 2012. The remaining absences were under 30 per year. For the employee who had 166 total absences (sic) had 105 absences in 2013. The remaining absences were under 25 per year.

14Mr. Chouinard was cross-examined regarding average sick time at RMYC. He testified that full-time YSOs are scheduled to work approximately 180 shifts per year and that average use of sick time at RMYC was roughly 10% yearly. Mr. Chouinard acknowledged that an average figure of 10% suggested a range of sick time above and below such level. He also agreed that absenteeism averages were generated “overwhelmingly by able bodied employees with no disability.”

15While the grievor was clear that his disability affected his attendance prior to May 2010, on May 27, 2010, he also injured his head and back in the course of performing his duties, after tripping on a basketball. He did not return to work until November 16, 2010, and at that time was provided with modified duties. The grievor’s WSIB claim was accepted from May 28 to July 2, 2010, and the Employer’s evidence established that his absence during this period was not included in the 106 days of sick time attributed to him in 2010. His time off between July 2 and November 16, 2010, however, was included in that total.

16The WSIB terminated Loss of Earnings benefits as of July 2010. The grievor was notified accordingly by letter dated October 6, 2010 and he did not appeal the Board’s decision. Mr. Chouinard’s evidence was that the Employer provided the grievor with a Return-to-Work and Employment Accommodation Plan as of June 7, 2010, and an Employee Return-to-Work and Employment Accommodation Plan dated June 7, 2010 was entered in evidence. In July 2, 2010 correspondence to the grievor, the WSIB noted that the Employer “stated that they had attempted to contact you since May 28, 2010 to offer you modified work . . . .”

17The grievor testified that he believed he was wrongly denied WSIB benefits during the period July – November 2010, and that the Board’s decision to terminate benefits was based on misrepresentation by Mr. Chouinard. He described Mr. Chouinard as a “liar,” and accused him of backdating the Return to Work Plan that suggested that modified work was offered in June. The grievor’s evidence was that he advised the WSIB of Mr. Chouinard’s alleged misconduct, that the Board accepted his conclusion and stated so in writing. Such written acknowledgement was not produced in these proceedings. He agreed that the WSIB nonetheless determined that he was offered accommodated work as of July 2, 2010 despite his assertion that this did not take place until November 2010.

18Mr. Bartolotta testified that it took approximately a year to heal from his May 2010 injuries, but that he fully recovered prior to attending an Independent Medical Examination (“IME”) in February 2012. Mr. Chouinard accepted in cross-examination that the grievor’s absence between May and November 2010 resulted from “unusual events from which he recovered.” In a February 26, 2012 IME report (“the IME report”), Dr. J. Andersen noted that the grievor “has had a full recovery from his work accident in May 2010. . . .”

19The grievor testified that the May 2010 accident exacerbated his degenerative back condition “for a while” and that he missed time at work because of his May 2010 injuries beyond his return to work in November 2010. In October 2010 correspondence, the WSIB noted that the grievor continued to “have an ongoing impairment” and that his “health care entitlement” would be monitored. In a February 7, 2011 WSIB Regional Evaluation Centre Multidisciplinary Health Care Assessment Report, Physician Specialist Blackman and Physiotherapist M. Lancis stated that the grievor’s May 2010 injury had “aggravated pre-existing chronic upper and lower back pain.” In a March 1, 2011 letter from WSIB Case Manager R. Fanelli, referenced in the Employer’s correspondence dated August 30, 2011, the Board stated:

You were seen at the Regional Evaluation Centre on February 7, 2011. . . . It was determined that you continue to be partially impaired. . . . Noting your injury, it is expected that you will make a full recovery by May 16, 2011.

20The grievor’s treating physician, Dr. J. Muhsen, noted in January 2011 that his patient was suffering from lumbar disc disease, and on September 28, 2011, he reiterated that his patient was suffering from a chronic condition and that there was no underlying condition affecting his recovery.

21Dr. Andersen commented on the grievor’s 2011 sick time, in the IME report:

His attendance record and loss of time as outlined above, has been, I consider, a direct result of acute flare-ups of his underlying condition and is independent of his WSIB injury which, once again is fully recovered.

As a result of his WSIB injury, with inactivity, Mr. Bartolotta has gained weight, and became significantly deconditioned and, lost core strength and endurance.

Although he has had a full recovery from his WSIB injury, these secondary effects of him being inactive and off work for that duration has made him more prone to reoccurrence of his underlying back condition as evidenced by the attendance records above. (sic)

As recommended, Mr. Bartolotta is currently in a home-based program that he attends to vigorously to address his lack of endurance, core strength and weight gain.

22The parties addressed as well the grievor’s eleven days of sick time used between May 22 and June 24, 2013. The grievor’s attendance record entered in evidence reflects absence due to sickness on May 15 and 16. A medical certificate dated July 16, 2013 indicates that such absence was due to “exacerbation of chronic back pain.” The record reflects that the grievor worked May 20 and 21. He was absent from work due to illness May 24, 25 and 26. He worked May 29 and was absent due to sickness May 30, June 3 and 4. He worked June 7, was absent due to illness June 8 and 9, and on vacation on June 12 and 13. He worked June 17, but was absent due to sickness June 18 and 21. He then worked June 22 but was absent due to sickness on June 23. He worked June 26, and was absent on June 27 due to “exacerbation of chronic back pain” according to the same July 16, 2013 medical certificate referenced above.

23The grievor testified in chief that he suffered from a “bad flu” in May and June 2013 that accounted for his eleven days of absence during this period. Mr. O’Brien acknowledged in cross-examination that he was not aware at the time that the grievor’s employment was terminated that the grievor attributed his absence during that period to the flu.

24The grievor testified in cross-examination that he sought no medical attention for the flu. He further acknowledged that he could not recall which days he had the flu and did not keep track of such information. He accepted that his evidence on this issue was by that point in time “just a guess.”

25Mr. Chouinard gave evidence regarding the Employer’s Attendance Support and Management Program (“ASMP”). He described that the program applies to non-culpable absenteeism, is non-disciplinary in nature and is “designed to reduce and manage absenteeism through a consistent and fair process in a manner that is consistent with the Code, other relevant legislation and the applicable collective agreements.” Mr. Chouinard agreed in cross-examination that the “big picture” is that the ASMP manages “non-WSIB and non-disability absences.”

26Mr. Chouinard’s evidence was that the grievor first entered Level 1 of the ASMP on September 20, 2009. Between September 2009 and July 2013, the Employer held ten attendance meetings with the grievor and his Union representative on the following dates: May 26 and November 25, 2010, February 25, August 30, September 27, and November 3, 2011, May 30, September 24, and October 22, 2012 and February 21, 2013. The first seven of the attendance meetings were held pursuant to the ASMP, while the final three meetings were held outside of the ASMP.

27The grievor’s absenteeism and attendance expectations were discussed at attendance meetings. Correspondence sent from the Employer to the grievor demonstrates that the Employer offered the grievor support through the Employee Assistance Program and assistance “to facilitate . . . regular attendance at work” and “in dealing with the causes of . . . absences.” Mr. O’Brien gave evidence that the Employer repeatedly offered the grievor accommodation to assist him in attending at work, but that the grievor consistently responded that no such accommodation was required. He recalled that the grievor indicated that he considered the continuous offers of accommodation to be harassment.

28Mr. Chouinard gave undisputed evidence that the grievor advised during the August 30, 2011 attendance meeting that he had lumbar disc disease and that his “attendance would not get better over time as a result of his condition.” He further testified that the grievor was asked at the May 2012 attendance meeting about his ability to work on a “regular basis” in the future, and that he advised that he had a “chronic condition” that “will never get better.”

29By no later than the February 25, 2011 meeting, and at a number of later meetings including those held on May 30, September 24, and October 22, 2012, and February 21, 2013, the grievor was advised by the Employer that his absenteeism was a “serious concern,” and that “continued attendance issues . . . could be grounds for non-culpable termination for innocent absenteeism due to frustration of the employment contract.”

30There is no dispute that the grievor required and was provided with modified duties upon his return to the workplace in November 2010 after his WSIB injury, but that these were phased out over time and prior to the February 2012 IME. Both parties agreed that, with the exception of the post-WSIB period, when the grievor was able to report to work, he was able to perform his full duties without restrictions.

31Mr. O’Brien agreed in cross-examination that after the grievor’s WSIB injury was resolved, the only accommodation required and sought by the grievor was that the Employer “cut him some slack” with respect to his attendance. Mr. O’Brien accepted that there was nothing “pejorative” in the fact that the grievor declined the Employer’s offers of accommodation, and that the grievor’s response was consistent with the medical opinions that there was in fact “nothing to ask for” beyond the Employer’s acceptance of “above average absenteeism.”

32The grievor accepts that he was “continually offered accommodation” by the Employer to assist him in attending at work. He testified that he declined such offers as he had “no bona fide restrictions or limitations while at work.” His evidence was that he sought as accommodation that recommended by his health care providers, that being that the Employer accept “higher than average” sick time from him. He acknowledged that he advised the Employer during the August 2011 attendance review meeting that it was his understanding that under the terms of the collective agreement, he was entitled to use 130 sick days yearly, and that his employment could not be terminated on the basis of such absenteeism.

33Mr. O’Brien testified that the Employer also addressed the possibility of conversion to regular part-time status or health re-assignment prior to terminating the grievor’s employment. According to Mr. O’Brien, however, these alternatives were not viewed as viable because of the sporadic nature of the grievor’s absences. In March 11, 2013 correspondence to the grievor, the Employer stated that because of the unpredictability of his absences, it had “limited options,” and that health re-assignment and conversion to regular part-time status were “not being considered.” In October 31, 2012 correspondence to the grievor, the Employer noted as well that health re-assignment was not being considered in part due to the fact that the available medical information confirmed that there were no restrictions or limitations on the grievor’s ability to perform the essential duties of the YSO position.

34In cross-examination, the Union asked Mr. O’Brien if the Employer considered what Union Counsel described as a “flexible part-time arrangement with a pool of sick time” for the grievor. The grievor acknowledged that this was only raised during these proceedings, and he testified that he understood that the “concept” was that he would have part-time hours with a “pool of sick time,” but would be “considered a full-time employee,” although not paid for hours not worked. Mr. O’Brien acknowledged that this was not previously explored, and that he was unable to comment on its feasibility without seeing a proposal from the Union.

35At the Employer’s request, the grievor attended at an IME in February 2012. Mr. O’Brien agreed in cross-examination that the grievor “relatively quickly” agreed to participate in such IME and “fully cooperated.”

36The parties both acknowledged that the Employer subsequently asked the grievor to provide a written treatment plan and that he declined to do so. Mr. Chouinard explained that Dr. Andersen indicated in his February 2012 IME report that the grievor was to follow a treatment plan, and that the Employer sought further information from the grievor regarding such plan at the October 22, 2012 attendance meeting. The parties disagreed as to whether or not the Employer was entitled to such information, and this played out in an e-mail exchange between the grievor and Mr. O’Brien in December 2012 in which the grievor suggested that Mr. Chouinard and Mr. O’Brien were “continually” harassing and discriminating against him. While the Employer clearly communicated that it believed that it was entitled to the information sought, the grievor was equally clear that he and the Union disagreed. Neither party retreated from its stated position. The Employer did not further pursue its request for a written treatment plan after December 2012 and did not order the grievor to provide same. The matter was essentially dropped.

37The evidence established that the grievor’s treating physician recommended that he engage in a home based exercise program to increase his physical fitness so as to alleviate pain by addressing core stability and deconditioning. The grievor confirmed that this was the treatment and in fact the only treatment prescribed by his own doctor and by “all medical practitioners,” and that it was accepted by Dr. Andersen as appropriate. In his December 2012 e-mail to Mr. O’Brien, he advised that he was “working within a self-directed home based treatment plan.”

38I note that there were references in the evidence to other forms of treatment and to depression. The grievor testified that he received massage and chiropractic treatments to help manage his symptoms. He also gave evidence that he was on “extensive medications” as of July 2013 to treat pain, inflammation and depression. Dr. Andersen made reference in his IME report to “pain medications.” The grievor’s physician, Dr. D. Juta, referenced in an October 4, 2012 note a Pain Clinic appointment and the “start of depression Rx” and Mr. Chouinard’s evidence was that the grievor stated at the October 22, 2012 attendance meeting that he was going to “new therapies.” The Union’s position in these proceedings was clear, however, that with the exception of the period following the 2010 WSIB injury and the period of May and June 2013 when the grievor recalled having the flu, the grievor’s absenteeism resulted from his chronic back condition. Further, the Union’s position was that the grievor’s physician and Dr. Andersen recommended a conditioning regime and “no other treatment” for his back condition. This was the grievor’s evidence before me and Mr. Chouinard accepted in cross-examination that this was also the Employer’s understanding.

39The evidence established that the Employer advised the grievor during the October 22, 2012 attendance meeting that his attendance would be monitored over a three month period. In October 31, 2012 correspondence to the grievor, copied to his Union representative, the Employer stated that he was expected to “regularly attend” work over “the next 90 days,” and that if he failed to demonstrate the “ability to regularly attend work over the next 90 days,” his employment “may be terminated due to frustration of the employment contract.”

40The evidence further established that the Employer met with the grievor and his Union representative on February 21, 2013 to review his “initial 90 day attendance review which ran from October 22, 2012 to January 22, 2013.” In correspondence dated March 11, 2013, the Employer stated:

Although you have shown some improvement in your attendance at work, this improvement is based on a relatively small number of shifts over the 90 day review period, and you still have not been able to consistently and regularly report for duties on your regularly scheduled shifts.

Due to the significance of your absence from the workplace on credits over this initial 90 day review period, the Employer is extending your attendance review for an additional 90 days from February 21, 2013 to May 21, 2013.

Over the next 90 day review period, the Employer expects that your attendance will significantly improve and that you will regularly attend your duties in the workplace. Again, if you are unable to demonstrate your ability to regularly attend work over the next 90 day review period, at the end of that timeframe, your employment may be terminated due to frustration of the employment contract.

The Employer commented as well in the same correspondence that the grievor committed to inform it if his medical condition changed and if he required accommodation.

41The grievor was advised by letter dated July 3, 2013 that his employment was terminated. Such letter stated in part as follows:

As you are aware, the primary nature of our employment relationship is that the Employer pays you wages and benefits in consideration that you perform your regular duties as a Youth Services Officer at the Roy McMurtry Youth Centre (RMYC). Since 2009, you have been unable to fulfill your obligation to the employer, in that you have not been in regular attendance in the workplace, performing your duties as a Youth Services Officer. . . .

Your Employer has determined that your record of past absences is excessive and there appears to be no reasonable prognosis for improvement. Based on this information you are dismissed from your employment with the Employer on the grounds of innocent, non-culpable absenteeism and frustration of the employment contract, effective immediately. . . .

42Medical records were entered in evidence. Counsel agreed that each record was to be accepted as reflecting the opinion of the writer without the need for either party to call that person to testify. As noted above, Dr. Muhsen, the grievor’s treating physician at the time, wrote on September 28, 2011 that his patient was suffering from a “chronic illness” and that there was “no underlying condition . . . affecting his recovery.” He expressed the view that Mr. Bartolotta had not “responded to conservative therapy,” that there were no “additional treatment options” available, and that he “might get flare ups every now and then.” He indicated that his patient was “able to do his duties” and that he had “no restrictions.” Dr. Muhsen did not believe that there were any “workplace barriers” but expressed the view that it was “the nature of the illness itself that precipitates attacks.”

43Dr. Andersen stated in his IME report dated February 26, 2012:

Mr. Bartolotta has a longstanding underlying (back condition) (sic) . . . . This underlying condition will probably continue to result in occasional flareups of his low back pain. I consider these flare-ups will become less severe and less frequent when he continues to attend to his identified barriers to recovery including deconditioning, body weight, reduced central core strength, and lowered endurance by a home-based exercise program currently in progress.

Mr. Bartolotta currently does not require formal restrictions and has no limitations in the performance of his full duties as a youth services officer.

It is important to note that he does have an underlying condition . . . that has resulted in occasional flare-ups of his low back pain and loss of time from work.

I consider these flare-ups will be minimized by attending to, as he currently is, the identified barriers such as his deconditioning, his weight, and is (sic) reduction and core strength and endurance.

I expect with this attention to these barriers, he will be able to resume his current level of attendance prior to his WSIB injury, and continue on in the full performance of his job without restrictions or limitations . . . .

By following the recommended treatment program outlined above and, by addressing the barriers to recovery outlined above, I consider that Mr. Bartolottas’s prognosis for continued good function of his low back condition along with him self-regulating his activities to avoid flare-ups, will result in an excellent prognosis in a long-term.

44Dr. Andersen stated that the grievor could “carry out his full duties as a Youth Services Officer

without restrictions or limitations,” and that there were no medical restrictions or limitations impacting on his ability to work twelve hour shifts. He noted, however, that the grievor was “struggling” with such shifts because of his weight and his deconditioned state. Similarly, while the doctor was of the view that the grievor did not require “specific accommodation, limiting his sequential shifts,” he noted that the grievor found that “working three subsequent shifts results in decompensation of his back condition.” Mr. O’Brien testified that the Employer could have modified the grievor’s shifts to accommodate him. In June 5, 2012 correspondence to the grievor, he referred to the May 30, 2012 attendance meeting, stating as follows:

Also at this meeting, we discussed your potential need for supports (i.e. a schedule modification – as it was indicated in the IME completed February 24, 2012 that you may find working more than two shifts in a row difficult.) You indicated that a workplace accommodation was not necessary at this time. . . .

Mr. Chouinard also testified that the Employer reviewed the IME report and possible accommodation requirements with the grievor at the May 2012 attendance meeting but that the grievor declined the accommodation offered.

45Dr. Juta was asked to advise the Employer “regarding Mr. Bartolotta’s prognosis of attending work on a regular basis (within or less than the Institutional Average) from the date of your examination to mid-year June 30, 2013.” He responded by note dated October 4, 2012:

More than average (for now) – Hopefully Pain Clinic appointment (Nov. 19) and start of depression Rx will help any sick days get better/less.

46A February 24, 2012 Occupational Therapy Assessment report, completed as part of the February 2012 IME, was also entered in evidence. Occupational Therapist Mallory Griffith recorded that the grievor was asked to rate his back pain on a scale of 0 – 10, with 10 being the “worst” pain. According to the report, the grievor rated his pain “on average as 7/10, although at times it increases to 10/10 in severity.”

47Mr. Chouinard acknowledged in cross-examination that the grievor’s absenteeism of 33% during the review periods was in fact an “improvement for that year” over his 50% absenteeism in 2012 and that his attendance was thus “heading in the right direction.” Mr. O’Brien likewise acknowledged that a projected 68 days of absence in 2013 was “better than” 92 days of absence in 2012. He commented, however, that the grievor’s attendance had not been “very good to begin with,” and that the projected 68 days of absence in 2013 “continued not to be good” and was in fact “higher than just about everyone else in the facility.” He suggested that the grievor’s absenteeism was consistent with the medical evidence that his condition was chronic and with the grievor’s advice to the Employer that there was “no prospect for improvement, but that this was just the way it was.”

48The grievor testified that between February 2012 and July 2013, he felt that he was getting better, and was optimistic that he would continue to get better. He believed that he saw his doctor during the month prior to his termination, and that it was his “impression” that his doctor was also optimistic that he was improving or “had the potential for improvement.” In cross-examination during the Fall of 2014, the grievor continued to rate the pain experienced during a flare-up at 10 on a scale of 1-10, as had been the case when assessed by the occupational therapist in February 2012. He testified that pain at that level precluded work.

49The Employer led evidence regarding the impact of the grievor’s absenteeism. Ms. Theriault described the process for backfilling for absences, and particularly absences arising less than 24 hours prior to a scheduled shift. She testified that the first source of backfilling was fixed term employees on the roster who were not yet scheduled forty hours. If a shift was not filled accordingly, the Employer then sought to fill it through overtime in accordance with a detailed overtime protocol. Ms. Theriault described that it was more difficult to backfill absences that arose on short notice as the Employer could not pre-plan, and because fixed term employees already had prescheduled shifts and therefore limited availability. Her evidence was that in such circumstances, “more times than not,” it was necessary to “go into overtime to try to backfill.” She testified as well that if the grievor called in sick on a Monday when also scheduled to work on Tuesday, on “numerous occasions” she would plan ahead and fill the Tuesday shift as well.

50Mr. Chouinard agreed in cross-examination that the number of fixed term employees available for backfilling is a function of the number of fixed term employees hired on the roster, and that if there are not enough fixed term employees available, it is ultimately because “someone has not authorized hiring of enough.” Mr. O’Brien addressed, however, what he characterized as a “balancing act” between maintaining an appropriate roster of fixed term employees to provide necessary coverage and ensuring that there was sufficient work for employees on the roster. He described that backfilling for absences arising on short notice is “difficult and labour intensive.” He gave evidence that weekend sick calls and the resulting shortage of staff have at times resulted in a need for the facility to “collapse units.” While he could not specifically say that this had been associated at any time with the grievor’s absences, he “intuitively” knew this to be the case. Mr. Chouinard agreed in cross-examination, however, that there is “always someone off on short term sickness,” and that “they are organized to deal with it.”

51The evidence also addressed the Primary Worker function performed by YSOs. Every youth, upon admission to the facility, is assigned to a full-time YSO designated as the Primary Worker. Care plans are completed and updated on a mandated schedule and case management meetings are held. Full-time YSOs also act as backup Primary Workers in the event that the Primary Worker is not on duty. Ms. Theriault described the relationship custody approach used in the facility, and the importance that the Primary Worker develops rapport and positive relationships with youth for purposes of continuity of care and the development of the case management plan. She emphasized that this required consistency, knowledge of the youth and stability. Mr. Delegarde also described the importance of the case management system, and testified that it involves a multi-disciplinary approach used as rehabilitative framework for youth. He stated that care plans play an important role in the justice system, allowing for the evaluation of progress. He emphasized that the Primary Worker is expected to have the most contact with and to know the young person. Ms. Theriault’s and Mr. Delegarde’s descriptions of the Primary Worker role are reflected in the YSO Position Description Report and the Case Management Manual entered in evidence.

52Mr. Delegarde testified that a YSO usually acts as Primary Worker for one youth and that “most of the time” there were “a couple of officers who would not have a prime youth.” Mr. O’Brien also acknowledged that some YSOs are assigned to positions in which they are not required to act as Primary Workers.

53Ms. Theriault gave evidence with respect to the impact of absenteeism on performance of the Primary Worker role, and suggested that if the YSO is “not there” and not in contact with the youth, the rapport and relationship developed is not “as intense.” Mr. O’Brien expressed the view that the grievor’s absenteeism was such that he could not “participate properly in case management.”

54Mr. Delegarde testified that the grievor’s absence “significantly impacted” on the grievor’s ability to perform the Primary Worker role. While Mr. Delegarde supervised the grievor from late 2009 to the Spring of 2011, including the period from May – November 2010 when the grievor was absent following his workplace injury, he suggested that such absences which he characterized as “sporadic” would have made it “challenging for anyone . . . to do the job effectively.” He agreed in cross-examination, however, that he did not recall “having the impression” that the grievor’s attendance was a problem in his performance of the Primary Worker function in 2010 and 2011 and did not believe that he ever raised this with the grievor or with his own supervisors. He further agreed that when “someone is not there, you fill in the gaps and make do.”

55Mr. O’Brien similarly agreed that he did not know and did not ever ask if the grievor missed case management meetings. He confirmed as well that he never received a complaint from a manager regarding the grievor’s participation in the Primary Worker program.

56Mr. Chouinard acknowledged that he did not know how the grievor performed his duties when at work or how he established relationships with youth. He recalled hearing from “other managers” in 2012 that the grievor’s absences at the time impacted on youth and other workers. Mr. Chouinard did not address this with the grievor, but directed the manager in question to do so. He could not recall if such manager reported back to him and agreed that he did not pursue this with the manager and did not know “how it worked out.”

57The grievor testified with respect to the Primary Worker program, and stated that he fully participated in it and in the case management aspects of the job. His evidence was that the feedback he received from managers was “very positive” and that his absence did not hinder his ability to do his work.

58The Employer also described the costs incurred in backfilling for the grievor’s absences. Mr. O’Brien testified in chief that it cost approximately $90,000 - $120,000 to backfill 310 absences at straight time rates, and more at overtime rates, in addition to the costs of the grievor’s short term sickness plan. He spoke of the “ongoing prospect of looking at absences of 35%.”

59Mr. O’Brien was questioned in cross-examination regarding such calculation. He accepted that the grievor was paid at the top level of the wage grid. He acknowledged that when the grievor was on short term sick leave, he was paid either 66 or 75% of salary and that most fixed term staff members were paid at the lower levels of the wage grid. He agreed with Union Counsel’s “math” that the difference between the grievor’s normal hourly rate and the total of his short term sick benefits and the straight time wage rate of fixed term staff was likely in the range of $18 per hour or approximately $200 for a twelve hour shift.

60Mr. Chouinard accepted in cross-examination that the Employer “absorbed” the cost of an average seventeen sick days per year for “able bodied employees.” He agreed that the cost of doing so was “maybe $12,000” and that the differential in the cost incurred by the Employer for the grievor’s absenteeism was in the range of $10,000 per year.

61Mr. O’Brien was questioned in cross-examination regarding the 2013-2014 budget for RMYC. He agreed that the total gross operating budget was in the range of $27 – 29 million, including salaries of approximately $16 million. In this context, while Mr. O’Brien emphasized his responsibility to properly manage the facility’s budget, he acknowledged that the expenses associated with backfilling the grievor’s absences “may not be the ‘be all and the end all.’”

THE ARGUMENT

62The Employer asserts that it is a “fundamental feature” of the employment relationship that an employee attends and performs work in exchange for wages and benefits. It argues that where an employee is unable to “uphold his end of the bargain” through excessive absenteeism, the termination of employment is justified. The Employer submits that the jurisprudence recognizes a two-part test to be applied in determining whether termination of employment on the basis of innocent absenteeism is justified. In Counsel’s submission, where absenteeism is excessive and where there is no prognosis for improvement in the future despite warnings to the employee, the Employer is justified in terminating employment.

63The Employer accepts that it bears the onus of establishing excessive absenteeism. It suggests that the grievor’s absenteeism record, viewed on both an absolute and relative basis, was clearly excessive. On an absolute basis, Counsel suggests that the grievor was absent approximately seventy days per year on average over the relevant period, and that this translates into an average absenteeism rate in excess of one-third. In the Employer’s submission, the arbitral case law consistently recognizes absenteeism at that level and less as “excessive.”

64The Employer argues as well that the grievor’s absenteeism during the relevant period was at least three times higher than the facility average, and in 2012, was closer to five times the facility average. It also asks me to consider the grievor’s absenteeism relative to that of other employees on an individual basis. Counsel notes that for all other employees who were not in receipt of LTIP benefits, the next highest total of sick days was 208, and that the grievor’s absenteeism exceeded that by 100 days. In the Employer’s submission, based on both the “quantum” of the grievor’s absence, and its “long history,” I must conclude that he has consistently exceeded the facility average absenteeism, and has often done so by a “large margin.”

65The Employer emphasizes as well that the grievor’s absences were “temporary and sporadic” in nature. It refers to the evidence before me relating to the impact of his absenteeism on his ability to perform the Primary Worker role, and to the issues encountered by the Employer in backfilling his “sporadic” absences. It notes as well evidence of what it characterized as the “significant financial cost to the Employer” resulting from the grievor’s absenteeism.

66The Employer accepts that it also bears the onus on the issue of prognosis, suggesting that it must establish that the grievor “is incapable of regular attendance into the future.” It submits that it properly draws such inference here and meets its onus through reliance on the grievor’s record, viewed in light of the nature of his disability and the relevant medical opinions.

67The Employer emphasizes that it is the grievor’s entire attendance record that must be considered in assessing the prognosis for improvement. Counsel relies on the decision of the Supreme Court of Canada in Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec and Section Locale 2000 (SCFP-FTQ) (2008), 2008 SCC 43, 174 L.A.C. (4th) 1, and argues that the Court was clear that a “compartmentalized approach” to the attendance record is not appropriate. The Employer urges me to conclude that the record viewed in its entirety demonstrates that the grievor’s absenteeism over a lengthy period has been not only “excessive,” but “consistently excessive.” Coupled with the fact that the grievor’s back condition giving rise to such absenteeism is both chronic and degenerative in nature, Counsel suggests that the only valid inference that can be drawn from the record is that the grievor’s excessive absenteeism will continue into the future. The Employer asks me to note the grievor’s own evidence that his degenerative condition worsened since he was young. It refers as well to Mr. Chouinard’s evidence that the grievor advised the Employer during attendance meetings that his attendance would not improve as he had a chronic condition that was not going to get better.

68The Employer acknowledges that the grievor was “on pace” to have 68 sick days in 2013, down from 92 in 2012. It argues, however, that it is not open to the Union to suggest improvement by “cherry picking” and by focussing on a limited period in what it views as the grievor’s long history of absenteeism. Rather, Counsel submits, I must note that the grievor’s 2013 absenteeism, which exceeded that of 2011, remained squarely “within the range of fluctuation” seen in his attendance record over the relevant period, and does not provide the basis for a positive prognosis.

69The Employer addressed as well the evidence that the grievor sustained a workplace injury in May 2010 from which he recovered no later than February 2012. Counsel notes the Union’s suggestion that 2011 absences should be viewed as thus giving rise to a “skewed picture” not properly relied upon for purposes of prognosis. Even if that is so, the Employer points out that the grievor’s absenteeism worsened significantly in 2012, after he had clearly recovered from the WSIB injury, and in 2013 was on track to be higher than in 2011.

70The Employer further urges me to consider the grievor’s absenteeism record in light of the medical evidence establishing that his chronic and degenerative back condition will continue to result in “flare-ups” in the future, and that the only treatment regime available is the home based exercise program. In Counsel’s submission, this is particularly noteworthy in light of Dr. Muhsen’s September 2011 report that his patient had not “responded to conservative therapy.”

71The Employer submits that it has satisfied its onus of establishing that excessive absenteeism will continue into the future. It acknowledges that it is open to the Union to rebut with objective evidence the inferences properly drawn from the grievor’s attendance record, but argues that the Union has failed to do so.

72The Employer acknowledges the positive “long term” prognosis offered by Dr. Andersen in February 2012 but argues that I must consider Dr. Andersen’s opinion in light of the evidence in its entirety. In the Employer’s submission, such opinion can be given little weight as the doctor’s “optimistic reassurances are not subsequently backed up” by the grievor’s attendance record. In these circumstances, the Employer denies that it was obliged to seek another medical opinion. The Employer notes that Dr. Andersen was clear that the grievor had fully recovered from his WSIB injury by the time of the IME, and it submits that his subsequent “excessive absenteeism” cannot therefore be regarded as a mere “blip” in his record attributable to the compensable injury. Further, in the Employer’s submission, Dr. Andersen’s positive prognosis was based not on a new treatment regime available to the grievor, but rather, on a “stay the course” exercise program already in place. The Employer also notes that although Dr. Andersen expected that the grievor’s flare-ups of back pain would become “less severe” and less frequent, the grievor testified in October 2014 that the intensity of pain suffered during a flare-up had not improved.

73The Employer acknowledges the grievor’s evidence that he believed his condition to be improving since February 2012. Counsel argues that such subjective self-assessment does not constitute the sort of objective evidence required for the Union to rebut the inferences properly drawn from the grievor’s record. The grievor’s assertion of improvement must be considered, the Employer argues, in light of his attendance record in 2012 and 2013 and his evidence that the level of pain experienced during a flare-up has not improved. It asks me to consider as well Mr. Chouinard’s uncontradicted evidence that the grievor communicated a less positive prognosis to the Employer during attendance meetings.

74The Employer accepts that it was required to warn the grievor that his employment was in jeopardy, and suggests that it provided the grievor with numerous warnings and opportunities to improve his attendance.

75The Employer does not dispute that the grievor’s absences largely result from his chronic back condition, a disability within the meaning of the Human Rights Code. It acknowledges a duty to accommodate pursuant to the Code and argues that it has satisfied its obligations in this respect. The Employer notes that it provided the grievor with the modified duties recommended by his physician upon his return to work after his May 2010 compensable injury. It argues as well that it repeatedly offered to assist and accommodate the grievor in attending at work and performing his duties throughout the attendance meetings held between May 2010 and February 2013. The Employer emphasizes that the grievor was able to perform the duties of the YSO position without limitations or restrictions when able to attend at work and that there was no predictability to the timing of the grievor’s absences. It is in such context, the Employer asserts, that I must consider the evidence that it did not view as viable health re-assignment or conversion to regular part-time status.

76The Employer notes that its repeated offers of accommodation to assist the grievor in attending at work and performing his duties were declined, and that the grievor was clear then and continues to be clear now that such accommodations were not required. The evidence in fact establishes that the only accommodation that the grievor sought and that the Union seeks in these proceedings is that the Employer accept absenteeism at a level that the Employer regards as excessive. In the Employer’s submission, the evidence is clear that the grievor suggested no options to the Employer beyond those considered, but rather simply pointed to his entitlement to 130 short term sick credits, and asserted a belief that his employment could not be terminated for medically documented absences within that range.

77he Employer argues that the Supreme Court of Canada in Hydro-Quebec affirmed that it is “a fundamental feature of any employment relationship for an employee to attend and perform work in exchange for the payment of wages and benefits,” and that the “goal of accommodation is to assist employees to attend and perform work for remuneration.” The Employer asserts that the Court has clearly stated that the Employer is not required to “tolerate excessive absenteeism as part of its duty to accommodate.” Counsel emphasized the distinction “between the accommodation of a disability, which an employer is required to offer, and the tolerance of a high rate of absenteeism on an on-going basis, which an employer is not required to tolerate.” It suggests that this distinction was recognized and accepted in the jurisprudence pre-dating Hydro-Quebec, and was reaffirmed by the Supreme Court of Canada. It argues that this Board recognized that very distinction in OPSEU (Eveleigh) and Liquor Control Board of Ontario, GSB #2008-2134, March 11, 2009, and takes the position that I am bound to follow such decision given the Board’s determination in Blake et al. and Toronto Area Transit Operating Authority, (1988), GSB #1276/87. (Cited in OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services, GSB #1925/96, May 31, 1999.)

78Counsel suggests that the Union takes an “extraordinary” position here, insofar as it relies on the Employer’s large size “to argue that it is obligated to accommodate Mr. Bartolotta’s clearly excessive absenteeism.” Not only does the Employer assert that such position is “clearly inconsistent” with the decision in Hydro-Quebec and with subsequent cases that have applied and followed it, but it also suggests that the Union’s argument is patently unreasonable from both a labour relations and a human rights standpoint. In Counsel’s submission, if accepted, “the Union’s position means that large employers like the OPS will effectively be precluded from terminating a person with disability for innocent absenteeism,” and that such a result would be “entirely incompatible with the jurisprudence of the Supreme Court of Canada as well as numerous other innocent absenteeism cases.”

79The Employer asks me to conclude that the grievor’s absenteeism record was excessive and that there was “no reasonable prognosis to achieve any semblance of regular attendance.” It asserts that it has appropriately warned the grievor that his employment was in jeopardy due to his level of absenteeism, and that it fully complied with its obligations under the Code. It emphasizes the fundamental nature of the employment contract, and argues that it is not required to “tolerate Mr. Bartolotta’s excessive absenteeism as a form of accommodation.” In the Employer’s submission, the termination of the grievor’s employment should therefore be upheld and the grievance dismissed.

80In addition to the Supreme Court of Canada’s decision in Hydro-Quebec, supra, the Employer relied upon the following authorities in support of its position: Vitalite Health Network and CUPE, Local 1252, [2011] N.B.L.A.A. No. 5 (McEvoy); Telus Communications Inc. and International Brotherhood of Electrical Workers, [2000] C.L.A.D. No. 127 (Beattie); Loblaws Companies Ltd. and UFCW, Local 247, [2014] B.C.C.A.A.A. No. 17 (M. Brown); Peel Regional Police Services Board and Peel Regional Police Assn. (2011), 204 L.A.C. (4th) 65 (Trachuk); Sault Area Hospital and CAW Canada, Local 1120, [2010] O.L.A.A. No. 174 (Harris); Sault Area Hospital and ONA, [2014] O.L.A.A. No. 176 (Hayes); Stelpipe – Welland Tube Works and CAW-TCA Canada. Local 523 (1993), 1993 CanLII 16649 (ON LA), 37 L.A.C. (4th) 284 (Whitehead); Telus Communications Inc. and Telecommunications Workers Union, 2011 BCSC 1761, [2011] B.C.J. No. 2521 (B.C.S.C.); City of Toronto and CUPE, Local 416, [2014] O.L.A.A. No. 75 (Barrett); Toronto District School Board and CUPE, Local 4400 (2008), 178 L.A.C. (4th) 182 (Whitaker); OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services, GSB #2003-0167, January 4, 2007; Washington Mills Electro Minerals Corp. and United Steelworkers of America, Local 4151 (2003), 2003 CanLII 89624 (ON LA), 117 L.A.C. (4th) 313 (H. Brown); Alagaratnam v. Metropolitan Hotel Vancouver, [2013] B.C.H.R.T.D. No. 251; and OPSEU (Eveleigh) and Liquor Control Board of Ontario, supra.

81The Union, in response, does not dispute that employment may be terminated on grounds of innocent absenteeism in appropriate circumstances. It acknowledges the two-part test articulated in the arbitral jurisprudence on innocent absenteeism. It takes the position that it is for the Employer to demonstrate that the grievor’s absenteeism was excessive and that there was no reasonable prospect for improvement. In the Union’s submission, the Employer fails to satisfy the onus it bears in this case.

82Counsel notes that a number of the authorities relied upon by the Employer involve innocent absenteeism where disability was not an issue. He argues that on the evidence before me, the grievor suffered a workplace injury in May 2010 from which he fully recovered. If one disregards absences due to such injury and those resulting from the grievor’s chronic back condition, his attendance at work would have been well within the facility average. Counsel submits that the grievor was thus fired because of his disability, and this, he emphasizes, distinguishes this case from many of the authorities relied upon by the Employer.

83The Union accepts that the grievor’s absenteeism was “high” and was in fact “significantly higher than the institutional norm.” In the context of absenteeism resulting from disability, however, Counsel suggests that attendance statistics and facility averages are not ultimately of assistance in determining whether the grievor’s absenteeism is properly viewed as “excessive.” In the Union’s view, “how high” it may be, and “how it compares to that of others” is not relevant where absenteeism is caused by disability, and “whether absenteeism was 10% or 40% may not ultimately matter.” The Union takes the position that the analysis undertaken by the Employer misses the “critical issue.” It argues that the Employer was obliged to accept the grievor’s absenteeism arising from disability up to the point of undue hardship, and that I can conclude that absenteeism was “excessive” only if the Employer demonstrates that accepting it resulted in undue hardship.

84In Union Counsel’s submission, this case “is all about accommodation.” Counsel referred to section 24(2) of the Code, which provides that no tribunal shall find that a qualification is reasonable and bona fide “unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any.” While the Union argues that cost is not appropriately considered in the context of an employer the size of the Province of Ontario, it commented nonetheless on the Employer’s evidence regarding the costs associated with the grievor’s absences, the need to backfill, and the impact of absenteeism on the Primary Worker role. In Counsel’s submission, the Employer failed to demonstrate that it experienced undue hardship in accommodating the grievor’s admittedly high level of absenteeism caused by his disability, and that his absenteeism record cannot therefore be properly viewed as “excessive.”

85The Union suggests that the Employer also bears the onus of demonstrating that there was no reasonable prospect for improvement in the grievor’s absenteeism. It reiterates that absenteeism arising from disability is only properly characterized as “excessive” where the Employer establishes that accepting it causes undue hardship, and it argues that prognosis must be addressed against that same standard. The Union acknowledges that the grievor’s back condition is degenerative in nature, and as such, will not “disappear.” It accepts that in all of the circumstances, it is a “reasonable conclusion” that the grievor’s absenteeism will continue to exceed the facility average. It disputes that the Employer is entitled to demand “regular attendance” if “regular” is equated with “average.” It asserts that the grievor’s attendance was in fact “regular” in any event and that the Employer must demonstrate that absenteeism will continue beyond a level that can be accommodated without undue hardship. In the Union’s submission, the Employer has failed to satisfy such onus.

86The Union emphasizes that reliance on the absenteeism record is useful only to the extent that it assists in predicting future attendance. It argues that much of the grievor’s absenteeism was attributable to his WSIB injury from which he recovered, and that reliance on such absenteeism in assessing prognosis was thus ill founded.

87Similarly, the Union asks me to conclude that the grievor suffered from the flu during eleven sick days taken in May and June 2013, and that absence attributed to an isolated bout of illness is not an indicator of future attendance. I raised with Counsel the fact that the Union stipulated in these proceedings and sought and obtained the agreement of the Employer that “virtually all” of the grievor’s absenteeism from October 2012 to the time of termination resulted from disability, and he emphasized that my decision here in no way turns on whether the flu played a part in any or all of the grievor’s absences during such period.

88The Union emphasizes the positive prognosis offered by Dr. Andersen in February 2012. Counsel notes that the Employer chose not to challenge the doctor’s opinion, and suggests that it must accept it now as must I. In the Union’s submission, Dr. Andersen’s optimism was in fact borne out by the reduced number of sick days in 2013 and by the grievor’s evidence that his condition improved after February 2012.

89Counsel recognized that I might conclude that it “proved more difficult than anticipated for the grievor to get back to pre-WSIB injury levels” after the February 2012 IME, but suggests that it was not open to the Employer in these circumstances to simply disregard Dr. Andersen’s opinion regarding prognosis. The Union argues that to the extent that the Employer did not view the grievor’s attendance record following February 2012 as reflecting the improvement contemplated by the doctor, it was obliged to seek a further medical opinion or to at least ask the grievor for comment before reaching its own contrary conclusion and terminating employment.

90The Union emphasizes that the grievor’s attendance did improve in the months after February 2012. Counsel notes that Mr. Chouinard and Mr. O’Brien agreed that there was improvement during the review periods and in 2013, and he suggests that I must accept such admissions. Counsel asserts that what “we don’t have is improvement to an acceptable level.” He argues that this “brings us back into what is excessive and what constitutes undue hardship,” reiterating that the Employer must establish prognosis linked to such standard.

91The Union therefore submits that the Employer has failed to establish that termination of employment was justified here on grounds of innocent absenteeism, even on the analysis that the Employer suggests is appropriate.

92In the Union’s submission, however, the more fundamental issue here and indeed the “heart of the case” is that the Employer failed to recognize its obligation to accommodate a disabled employee. Counsel states that the question to be answered here is whether the Employer was in all of the circumstances required to accept above average absenteeism from the grievor as an accommodation of his disability, or whether this would constitute undue hardship for it to do so. He acknowledges that the matter before me engages a “clash of principles” between the law as it pertains to innocent absenteeism and the Employer’s duty to accommodate disability. In the Union’s submission, the Employer takes the position that the “inability to deliver on the terms of the employment contract overrides the duty to accommodate.” It argues, however, that the Employer must establish that accepting the grievor’s level of absenteeism resulted in undue hardship. It disputes that the Employer has done so here and suggests that this is the “nub of the legal issue” before me.

93The Union asserts that the jurisprudence, including that of the Supreme Court of Canada in The British Columbia Government and Service Employees’ Union v. The Government of the Province of British Columbia (Meiorin), 1999 CanLII 652 (SCC), [1999] 3 SCR 3 and Hydro-Quebec, supra, consistently affirms a liberally construed obligation on the Employer to accommodate a disabled employee, to the point of undue hardship. It disputes that the courts have in any way departed from the “established approach set out in Meiorin” in cases pertaining to innocent absenteeism. Rather, in Counsel’s submission, the “legal protections owed to disabled employees imply that employers may be required to tolerate an above average degree of absenteeism before terminating a disabled employee if it can do so without undue hardship.” The Union argues that whether or not “excessive” absenteeism in specific circumstances nullifies the employment relationship must be decided on the facts and on the basis of an undue hardship analysis. Counsel emphasizes the “individualized nature of the duty to accommodate” and argues that “to ignore the undue hardship test by labelling the absences as excessive without regard to the employer’s capacity to absorb them is to risk undermining the constitutional, statutory and collective agreement protections against discrimination on the basis of a disability.”

94The Union distinguished the facts before me from those in issue in Hydro-Quebec. It asserts that Mr. Bartolotta was able to regularly attend work and perform work in exchange for pay and did so. His absenteeism level improved prior to termination, and his past record was negatively impacted by conditions other than his disability. The Employer, in the Union’s submission, was able to accommodate his absences, and in fact regularly accommodates disability and non-disability absences in the same range, through attendance mechanisms in place that permit it to efficiently fill absences.

95It notes as well that the grievor received sick benefits while absent due to illness, suggesting that he was not paid for work not performed.

96The Union asserts that the Employer asks this Board to “forfeit the duty to accommodate analysis that is owing to an Employee that has experienced discrimination on the basis of disability.” To find for the Employer, in its submission, would be to alter “the very terms of the HRC” and would go “against decades of established human rights jurisprudence.”

97The Union asks me to uphold the grievance, to reinstate the grievor in his employment as a full-time YSO with full compensation, and to otherwise make him whole. The Union asserts as well that in the circumstances of this case, damages for the breach of the grievor’s human rights and punitive damages are warranted.

98In support of the Union’s position, Counsel referred to and relied upon the following authorities: Hydro-Quebec, supra; OPSEU (Union Grievance) and Ministry of the Solicitor General and Correctional Services, supra; Town of Ingersoll and CUPE, Local 107 (2003), 2003 CanLII 89608 (ON LA), 122 L.A.C. (4th) 402 (Williamson); Chrysler Canada Ltd. and United Automobile Workers, Local 444 (1986), 1986 CanLII 6636 (ON LA), 23 L.A.C. (3d) 366 (Kennedy); Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2005 FCA 311, [2005] F.C.J. No. 1647 (Fed. C.A.); The British Columbia Government and Service Employees’ Union (Meiorin), supra; York County Hospital and ONA, [1992] O.L.A.A. No. 71 (Walters); Parisien and Canadian Human Rights Commission and Ottawa-Carleton Regional Transit Commission, 2003 CHRT 10; OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, [2010] O.G.S.B.A. No. 18; and OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, [2013] O.G.S.B.A. No. 116.

99In reply, the Employer addressed the Union’s position that the grievor received sick benefits when absent from work. Counsel reiterates that the essence of the employment contract is attendance at and performance of work in exchange for wages and benefits, and that the fact that the grievor received sick benefits pursuant to article 44 during absences does not alter the analysis here. In any event, Counsel notes that the parties have agreed through article 44 that sick benefits are “salary.”

100By correspondence dated January 6, 2015, I advised both Counsel that it came to my attention after these proceedings had concluded that a decision relied upon in final argument had been reversed on judicial review. Counsel were thus afforded the opportunity to make submissions with respect to City of Ottawa and Canada (Human Rights Commission) and Desormeaux and City of Ottawa and Canada (Human Rights Commission) and Parisien, 2004 FC 1778, [2004] F.C.J. No. 2172. The Union filed submissions dated January 21, 2015 and the Employer did so January 30, 2015.

101The Union suggests that the Federal Court was clear in City of Ottawa and Desormeaux and Parisien, supra, that the approach set out in Meiorin, supra, remains the test that employers must satisfy in innocent absenteeism cases, and confirmed that the onus to demonstrate undue hardship rests with the Employer. In Counsel’s submission, the Court applied an undue hardship analysis in determining the case pertaining to Mr. Parisien, and “held the employer to the test of showing that it had met its obligation to accommodate.” The Union argues that the Federal Court’s decision cannot be read “to support the conclusion that employers do not have a duty to accommodate employees with excessive absenteeism levels by tolerating their absences.” In its submission, “there is nothing in this decision that suggests that when it comes to innocent absenteeism the courts are departing with the established approach set out in Meiorin.” Counsel argues that this is in fact “reinforced” by the Federal Court of Appeal’s decision in the related case of Ms. Desormeaux (Desormeaux v. Ottawa-Carleton Regional Transit Commission, supra) where the Court applied the three-step Meiorin test and determined that it is “trite law” that the Employer had an obligation to accommodate a disabled employee to the point of undue hardship. Counsel notes that the Federal Court stated that “excessive innocent absenteeism” has the “potential to nullify” the employment relationship, but suggests that whether it does so in any given case is a “question to be decided on the facts and through an undue hardship analysis.”

102The Employer, in its submission, reiterates that the Supreme Court of Canada has rejected the premise “that an Employer is required to tolerate excessive absenteeism as a form of accommodation.” It suggests that the facts as they pertained to Ms. Desormeaux were distinguishable from those relating to the grievor, and that the Federal Court of Appeal’s decision as it related to her was distinguishable from the case before me. The Employer disputed as well a number of the factual assertions advanced by the Union. I note in particular the Employer’s submission that it is “incorrect to suggest that Mr. Bartolotta was able to ‘regularly’ attend work given his excessive level of absenteeism.” The Employer disputes as well the Union’s assertion that it “regularly accommodates Mr. Bartolotta’s level of absences with respect to other employees,” or that such absences can be “efficiently backfilled.”

DECISION:

103The grievor suffers from a chronic degenerative back condition. The parties agree that it constitutes a disability within the meaning of the Human Rights Code. During the relevant period, the grievor’s back condition caused unpredictable “flare-ups” of debilitating pain that rendered him incapacitated and bedridden. While there are certain periods of time that are contentious, there is no dispute that the grievor’s absenteeism resulted largely from flare-ups of pain associated with his disability.

104The parties agree and the medical evidence is clear that when the grievor was able to report to work, with the exception of the period following his WSIB injury, he had no restrictions or limitations on his ability to perform the full duties of the YSO. No workplace accommodation was required to permit him to do so.

105The grievor’s employment was terminated on grounds of innocent absenteeism. The Union does not contest that it is open to an employer, in appropriate circumstances, to terminate employment because of innocent absenteeism. That this is so is rooted in the fundamental nature of the employment contract, which contemplates the exchange of work for wages and benefits. The adjudicator in Vitalite Health, supra, addressed this as follows:

Having contracted for labour, an employer is entitled to rely on its employees to attend work and to perform the tasks for which they were hired. It is in reliance of this contract, that the employer organizes its workplace and provides goods and services to its customers or clients. An employee who fails to provide labour on a sustained basis is in breach of his or her obligations under the employment contract. When this happens, the employer may seek to terminate the employment relationship. As expressed in Mitchnick and Etherington, Labour Arbitration in Canada (Toronto: Lancaster House, 2006) at 239, “the employer is entitled to expect a reasonable level of attendance on the part of its employees. The right to regular attendance is usually said to be implicit in the employment contract itself.” (p. 11)

106The arbitral jurisprudence sets out a two-part test applied in innocent absenteeism cases. I accept Arbitrator Harris’ description of such “general principles relating to discharge for innocent absenteeism,” as follows:

The employer must establish that the grievor’s past attendance record evidences excessive absenteeism. Absenteeism is excessive when it is both significantly above the work place average and is excessive on an absolute basis. The employer may look at the entire record. The employer must also establish that the grievor is incapable of regular attendance into the future. The past record of excessive absenteeism and other factors may be relied upon to draw the inference that future attendance will not improve. Any such inference may be rebutted by the Union and the grievor with objective evidence. An over-arching consideration is the balancing of the legitimate interests of the parties. The grievor must have been warned that his or her employment is in jeopardy if there is no improvement and thus be given an opportunity to improve their attendance. Having warned the employee of the problem, the employer may justifiably terminate the employment relationship when it is undermined by the employee’s mental or physical condition. (Sault Area Hospital and CAW, supra, para 44)

107The Union notes that much of the jurisprudence relied upon by the Employer relates to absenteeism that does not result from disability within the meaning of the Code. Although it acknowledges that excessive absenteeism, even when caused by disability, has the “potential to nullify” the employment relationship, it argues that the Employer’s fundamental duty to accommodate a disabled employee must inform the determination of whether the employment relationship is in fact so nullified.

108While the Union thus asserts that the two-step analysis urged upon me by the Employer here is deficient insofar as it fails to recognize the Employer’s obligations under the Code, Counsel suggests that, on the evidence before me, the Employer fails to meet its onus to justify termination of employment even if that determination is made in the manner proposed by the Employer. I thus begin by considering whether the Employer meets its onus and justifies termination here on the basis that it suggests is appropriate.

109The grievor commenced his employment at RMYC in 2009 and used 310 sick days between 2009 and July 2013 when his employment was terminated. His average yearly absenteeism over the relevant period amounted to just under seventy days. The Union accepts that such absenteeism was “high.” The total number of sick days, broken down on a yearly basis, is as follows:

2009 – 24 days

2010 – 106 days

2011 – 54 days

2012 – 92 days

2013 (as of July 3) – 34 days

110Full-time YSOs at RMYC were scheduled to work approximately 180 shifts per year. Based on that number, the grievor’s rate of absenteeism was roughly 13% in 2009 assuming employment for the full year, over 55% in 2010, 30% in 2011, just over 50% in 2012, and over 35% in the first half of 2013. Average yearly absenteeism of just under seventy days amounts to an average absenteeism rate of over 35% during the relevant period. “Average” sick time in the facility was approximately 10% throughout the relevant period.

111The evidence establishes as well that from the start of the ASMP to December 31, 2013, the grievor was absent more shifts than any employee at RMYC excluding those in receipt of LTIP benefits. For the employee receiving LTIP benefits, her absences from 2009 to October 2012 when she was placed on LTIP totalled 274. For all other employees in the period from the start of the ASMP to the end of 2013, the five highest absenteeism totals were 208, 166, 161, 158 and 153. These figures include both disability based and WSIB absences. As noted by Employer Counsel, excluding employees in receipt of LTIP benefits, the grievor’s total absences from 2009 to July 2013 exceeded the next highest total to the end of 2013 by more than 100 days.

112I accept the Employer’s submission that arbitrators have found comparable levels of absenteeism to be excessive. In Vitalite Health, supra, the arbitrator noted the parties’ agreement that a lengthy absenteeism record, including a 24.6% rate of absenteeism from 2005 – 2011, a rate roughly three to four times higher than applicable average rates of absenteeism, was “excessive.”

113In Telus Communications Inc., supra, the evidence established that the grievor was absent on thirty occasions (40.6 days) in 1996, 29 occasions (69 days) in 1997, and 19 occasions (28.5 days) from January to November 1998. The arbitrator noted that there was “no issue” before him that such absences would “by any reasonable standard, be considered excessive.” (para 1)

114In Loblaws, supra, the grievor’s rate of absenteeism was 2% in 2009, 12% in 2010, 10% in 2011, 13% in 2012 and 17% to a point in 2013 in comparison to Distribution Centre average rates of absenteeism from 2010 ranging between 2.1 – 4.9%. The arbitrator concluded that such absenteeism was excessive.

115In Sault Area Hospital and CAW, supra, the Hospital relied upon absenteeism averaging 63 days per year or 24% from April 2003 – March 2008 in terminating the grievor for innocent absenteeism. The arbitrator concluded as follows:

The department average was approximately 13 days per year. Although there was some improvement in 2007, her absenteeism rate then was three times that of her department, which is in itself very problematic. By the time she was let go in June 2008, she was at a level of absenteeism six times that of her colleagues. This is not a case that requires a close assessment of the rate of absenteeism. Her rate of absence was well above the department average and, on its face, is excessive in an absolute sense. Manifestly, the absenteeism of the grievor has been excessive. (para 49)

116In Sault Area Hospital and ONA, supra, the Employer sought to rely on a record of absenteeism ranging from 3 -16% between 2004 and 2012. The arbitrator concluded as follows:

I am not able however to reach the conclusion that the Hospital has failed to establish undue absenteeism on the part of this grievor. There can be no doubt that her attendance record has been extremely poor by any standard for a long period of time. . . .

Since April 2006 the grievor has bettered the Department average record of attendance in only one six-month period. In many other six-month periods, her average rate of absenteeism was double, and more, to that of her own departmental colleagues. (paras 57-57)

117In Stelpipe, supra, the arbitrator made the following findings:

Regarding the first test, the uncontradicted facts are that grievor had an absenteeism rate from 1987 to his termination in March, 1993, which averaged 35.8% over the period and ranged from a low of 16.8% in 1988 to highs of 54.7% in 1990 and 100% for the period of his employment in 1993. This rate of absenteeism over a period of over five years is clearly excessive both when compared to a plant average of approximately 8% and when considered on an absolute basis. That is, the grievor was absent more than one-third of the time for which he could have been scheduled to work. For purposes of deciding a case of innocent chronic absenteeism, the fact that the majority of his absences since 1990 were related to one compensable injury is irrelevant. . . . On the uncontradicted facts, I find that the employer has met the burden of the first test by demonstrating that the grievor’s past record of absenteeism was excessive. (pp. 290-291)

118In the City of Toronto, supra, a case in which absenteeism resulted from disability within the meaning of the Code, the evidence established absenteeism of sixty days in 2009, 96 days in 2010, 109 days in 2011 and 35 days up to May 2012, in the context of a departmental average absenteeism rate of 10 days yearly. The arbitrator concluded that such absenteeism was “unacceptable.” (para 101)

119If I consider the grievor’s absenteeism record in the absolute and relative terms that the Employer suggests is appropriate here, there can be no doubt that it has clearly met its onus and demonstrated that such record during the relevant period was not only “high,” and not only “above average” as acknowledged by the Union, but in fact also “excessive.”

120The Employer asks me to conclude that it has also satisfied its onus to establish that the grievor was incapable of regular attendance into the future. Again, while the parties differ as to how prognosis is to be addressed where absenteeism results from disability, the Union takes the position that the Employer fails to satisfy its onus even as the Employer characterizes it.

121In considering whether or not the Employer meets such onus, I accept that it is open to it to rely upon the grievor’s record, viewed in light of the evidence in its entirety, for the purpose of drawing inferences as to his future attendance. In doing so, it is the record in its entirety that should be considered. I note the Supreme Court of Canada’s comments in Hydro-Quebec:

The Court of Appeal held that the duty to accommodate had to be assessed as of the time the decision to dismiss the complainant was made. . . .

It should be noted that the Court of Appeal’s judgment was delivered prior to this Court’s decision in McGill University Health Centre. In that case, this Court reversed a decision in which the Court of Appeal had adopted the date of dismissal as the relevant date. This Court opted to assess the duty to accommodate globally in a way that took into account the entire time the employee was absent (para 33):

The Court of Appeal appears to have held that the duty to accommodate must be assessed as of the time the employee was effectively denied an additional measure (para 31). In my view, this approach is based on a compartmentalization of the employee’s various health problems. Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period.

In the instant case, the Court of Appeal applied a compartmentalized approach that was equally inappropriate. A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship. (paras 20 – 21)

122The record, when viewed in its entirety, demonstrates absenteeism that was excessive in both absolute and relative terms over the period in question. While I recognize that the grievor attended work and performed his full duties except when his disability precluded him from doing so, I reject the Union’s suggestion that his attendance can be viewed as “regular.” The grievor’s record must be considered in light of the undisputed fact that his absenteeism largely results from a chronic and degenerative back condition that the Union acknowledged is not going to “disappear.” Indeed, the grievor acknowledged that his condition has in fact worsened since he was young, and Dr. Muhsen, his treating physician in 2011, noted that it is the “nature of the illness itself that precipitates attacks.”

123While a compartmentalized approach to the record is not appropriate, I recognize that the grievor’s use of sick days in 2013 was down from that of 2012. The Union emphasizes that both Mr. Chouinard and Mr. O’Brien accepted that there was “improvement” at that time, suggesting that I am bound by their admissions. I, like Mr. Chouinard and Mr. O’Brien, accept the obvious proposition that 68 days is less than 92 days, and that if 2013 and 2012 are viewed in isolation relative to each other, 68 sick days is an improvement over 92 sick days. If one focusses on isolated periods only, one also notes that the 33% absenteeism rate from the start of the review periods to the time of termination was lower than the 2012 rate, but that absenteeism during the second review period increased from that of the first review period. Such compartmentalized approach is not appropriate however.

124The decision of the British Columbia Supreme Court in Telus Advanced Communications, supra, is instructive. On an application for judicial review of an arbitrator’s decision upholding dismissal for excessive absenteeism, the Court considered the Union’s submission that the arbitrator had failed to recognize that the grievor’s absenteeism in the months just prior to termination “represented a substantial improvement” in his attendance. The facts recited by the Court indicate that in the six months prior to termination in 2008, the grievor’s absenteeism was at a rate of just over 14%. Past absenteeism over recent years included 20% in 2004, 23% in 2005, 49% in 2006 and 32% in 2007. The Court commented as follows:

The arbitrator was not bound to narrow his focus to the more recent months or to give effect to a purported improvement that the union said occurred in the first half of 2008. Indeed, the Supreme Court of Canada in Hydro-Quebec . . . was critical of a “compartmentalized approach.” In the context of the entire period that the arbitrator considered, the apparent “improvement” was within the range of fluctuation that had been going for years. (para 28)

125In the same way here, despite “apparent” improvement in the grievor’s 2013 absenteeism when his record is viewed in a compartmentalized fashion, a projected 68 sick days or 35% absenteeism in 2013, in fact continues to fall squarely “within the range of fluctuation” over the relevant time period. While 2013 absenteeism was lower than that of 2012, it was higher than that of 2011. Over 4.5 years, the grievor was absent due to sickness an average of approximately 70 days per year, or approximately 35% of his scheduled shifts. While the 2013 record viewed relative only to that of 2012 suggests improvement, when considered in the context of the record in its entirety, the grievor’s 2013 absenteeism in fact remained in the same range as had been the case over the course of the relevant period.

126In considering the inferences properly drawn from the grievor’s attendance record, I accept the Union’s argument that not all past absences are “useful predictors of future absences.” As noted in Brown and Beatty, Canadian Labour Arbitration, at para. 7:6110, “where it can be shown that the cause or causes of an employee’s illness or incapacity have been or are in the process of being removed or cured, it has been held that notwithstanding the past record, the prospects for future attendance may be sufficiently positive to warrant continued employment.” (Quoted in Vitalite Health Network, supra, at para 31)

127The Union suggested in particular that the Employer included and relied upon the grievor’s absence from July to November 2010 in calculating 106 days of sick time in 2010. In the Union’s submission, such absence was attributable to the grievor’s compensable injury suffered in May 2010, an injury from which he recovered.

128Clearly, it is not open to the grievor to challenge through these proceedings the WSIB’s decision to terminate loss of earnings benefits as of July 2010, and the Union did not suggest otherwise. Further, to the extent that the grievor suggests that the WSIB’s decision flowed from alleged misconduct on Mr. Chouinard’s part, the evidence before me does not substantiate this serious allegation.

129What is important here, however, is that the grievor fully recovered from his May 2010 compensable injury. In this context, I accept the Union’s submission that regardless of the fact that the grievor did not challenge the WSIB’s decision to terminate payment of benefits beyond July 2, 2010, it is entirely proper to consider whether the Employer’s conclusions as to prognosis were ill founded insofar as they were based in part on absences caused by an injury from which he recovered.

130The medical evidence pertaining to the period following the WSIB injury is less than clear in defining the extent to which post-July 2010 absenteeism was attributable to the grievor’s chronic condition and the extent to which it was due to his compensable back injury. When viewed in its entirety, however, I accept that the grievor continued even after July 2010 “to have an ongoing impairment” due to his WSIB injury. This was acknowledged by the WSIB in October 2010 and early in 2011. While it may not be possible to precisely delineate the extent to which the grievor’s disability contributed to his absences between July and November 2010 and where such absences resulted from his compensable back injury, I accept that the grievor’s absenteeism during that period must be considered in light of the fact that he continued to have an “ongoing impairment” arising from a workplace injury from which he recovered long before his employment was terminated.

131The Union suggested that if the grievor’s May – November 2010 absence is “taken out of the mix,” this likely accounted for approximately 85 of the 106 sick days attributed to him for the 2010 calendar year, calculated by the Union on the basis that he was absent for six months, missing approximately fourteen shifts per month.

132While I accept the Union’s rationale, some clarification regarding its proposed calculation is, in my view, in order. The Employer’s uncontested evidence was that the grievor’s absence from May 28 to July 2, 2010 was not counted as sick days. He returned to work November 16, 2010. If one estimates his missed shifts on the basis of fourteen per month as urged by the Union or perhaps fifteen per month based on 180 shifts annually, and if one accepts that the grievor’s WSIB injury from which he ultimately recovered continued to play at least some role in his absenteeism during the period of July 2 to November 16, 2010, on the calculation proposed by the Union, this accounts for up to 68 of the 106 sick days in 2010 possibly attributable to the May 2010 WSIB injury. When drawing inferences as to prognosis from the grievor’s attendance record, the fact that the grievor’s WSIB injury from which he recovered may well have played a role in his absenteeism between July and November 2010 must be acknowledged.

133The Union further suggested that the grievor’s WSIB injury from which he recovered was a factor in his absenteeism not only between July and November 2010, but also beyond November 2010 when he returned to work on modified duties. The grievor recalled that it took approximately one year for his compensable injury to heal.

1342011 notes from the grievor’s treating physician reference only his chronic condition. Dr. Andersen too was of the view that the grievor’s 2011 absenteeism resulted from his chronic back condition and was “independent of his WSIB injury.” He noted, however, that the grievor was in a deconditioned state because of inactivity resulting from the WSIB injury, and suggested that this made him “more prone” to recurrences of his underlying condition in 2011. This, the doctor understood, would be addressed through the grievor’s home based exercise program. In drawing inferences as to prognosis from the grievor’s attendance record, the residual effects of the WSIB injury addressed by Dr. Andersen must also be acknowledged as contributors to 2011 absenteeism therefore.

135In considering what inferences as to prognosis are properly drawn from the grievor’s attendance record, I also address the evidence regarding his eleven sick days between May 22 and June 24, 2013. The Union suggests that such absenteeism was attributable to an isolated bout with the flu and that it was not an appropriate basis upon which the Employer should have relied in considering prognosis for the future therefore.

136I have considered the grievor’s evidence in chief that his absences over this period, interspersed with days upon which he was able to attend at work, were due to a “bad flu.” On cross-examination, however, the grievor was far less certain that this was so. He did not know which days he had the flu. No medical records substantiating his claim were produced, and he stated that he did not seek medical attention for the flu, despite his recollection in his testimony in chief that he saw his doctor during the final month of his employment. He ultimately acknowledged in cross-examination that he was less than certain in his recollections that the flu accounted for those eleven days of absence in 2013.

137Such evidence must also be viewed in the context of the Union’s position during much of these proceedings that the Employer knew or should have known at the time of termination that “virtually all of the grievor’s absences” were due to his disability or to his earlier WSIB injury. It put to Mr. Chouinard in cross-examination that the grievor’s evidence would be that from October 2012 to the time of termination, “virtually all of his sick days were caused by his disability.” The Union sought and obtained Mr. Chouinard’s agreement that such assertion was not disputed. In all of these circumstances, I do not accept that the grievor’s uncertain recollections otherwise provide a basis upon which I should find anything different than that “virtually all” of his sick days after October 2012 were caused by disability.

138The Employer asks me to consider the grievor’s record in light of the medical opinions in evidence. As noted, Dr. Muhsen advised in September 2011 that he expected that his patient “might get flare-ups every now and then,” explaining that it was the “nature of the illness itself that precipitates such attacks.” In an October 4, 2012 note, Dr. Juta expressed “hope” that sick days from October 2012 to June 30, 2013 would “get better/less.” The Employer emphasizes the evidence that the home based exercise program in which the grievor was engaged in accordance with his physician’s recommendations was the only treatment regime available.

139Dr. Andersen’s February 2012 IME report is important in addressing prognosis. Dr. Andersen was clear that although he expected that the grievor’s condition would “probably continue to result in occasional flare-ups of his low back pain,” he believed that these would “become less severe and less frequent” with the grievor’s adherence to the recommended exercise program. He suggested that the grievor had “an excellent prognosis in a long-term” with the expectation that he would “be able to resume his current level of attendance prior to his WSIB injury” with attention to his deconditioning, weight, core strength and endurance.

140While medical reports were entered in evidence with the agreement of Counsel that they would be accepted as establishing the opinions of the writers without the need to call the physicians in issue as witnesses, I must nonetheless consider and weigh Dr. Andersen’s opinion in the context of the evidence in its entirety, including that relating to what followed over the next sixteen months.

141As noted, I accept that the grievor’s WSIB injury from which he recovered must be viewed as at least a factor in his absenteeism between July and November 2010. I recognize as well that his deconditioned state due to inactivity following his May 2010 injury made him more prone to flare-ups of his disabling back condition in 2011. Despite Dr. Andersen’s positive prognosis as of February 2012, and despite the fact that the grievor had recovered from his compensable injury by that point in time, the grievor’s attendance in 2012 not only failed to reflect improvement, but in fact significantly declined although the grievor was engaged in the medically recommended exercise program. Absenteeism in 2013 was lower than in 2012, but even then, continued to be higher than it had been in 2011 when Dr. Andersen believed the grievor’s deconditioned state carrying over from his 2010 injury was a contributing factor.

142The grievor was clear that, with the exception of the period following the WSIB injury and the May-June 2013 period, he called in sick when he was suffering from debilitating back pain. His absenteeism record following Dr. Andersen’s IME report must therefore be considered accordingly as reflecting his chronic back condition. Specifically, Dr. Andersen’s February 2012 prognosis that flare-ups would become less frequent must be viewed in light of the decline in the grievor’s 2012 attendance and in light of the fact that his 2013 absenteeism remained higher than in 2011. Further, while Dr. Andersen was optimistic in February 2012 that the grievor’s flare-ups would also become less severe, the grievor testified during his October 2014 cross-examination that the intensity of the pain experienced during a flare-up had, unfortunately, not diminished. Accordingly, while I acknowledge the positive “long-term” prognosis offered by Dr. Andersen in February 2012, I must conclude that his optimism was not borne out on the facts.

143The Union suggested that, to the extent that the grievor’s post-February 2012 attendance did not in fact reflect Dr. Andersen’s positive prognosis, it was incumbent upon the Employer to seek medical clarification before making its own assessment and terminating employment. In other circumstances, that may well be the case. Here, however, there is little in question that might have warranted another professional opinion. There is no dispute that the grievor’s absences in 2012 and 2013 continued to be the result of the same chronic degenerative back condition assessed by Dr. Andersen. There is no dispute that he continued to take sick days only when he was experiencing flare-ups of debilitating back pain and that his attendance record following the IME must be understood accordingly. There is no dispute that his home based exercise program was the only medically recommended treatment regime available to him, and as noted by the grievor in his December 2012 e-mail to Mr. O’Brien, he was compliant with his doctor’s treatment recommendations. While the grievor’s workplace injury suffered in May 2010 directly and then indirectly contributed to absenteeism for a period, there is no dispute that he had fully recovered from this by the time of his IME in 2012. There is no dispute that his attendance then significantly declined in 2012, and even in 2013 absenteeism was higher than in 2011. There is no dispute that as of 2014, the severity of pain experienced during a “flare-up” had failed to improve. After receiving Dr. Andersen’s report providing a positive “long term” prognosis, the Employer waited another sixteen months before it concluded that termination of employment was justified. During that period, four further attendance meetings were held. As late as March 2013, the grievor was asked to advise the Employer if his medical condition changed or if he required accommodation. In all of these circumstances, I am satisfied that it was open to the Employer to conclude that the positive prognosis offered by Dr. Andersen was simply not supported by the objective facts.

144In assessing prognosis, the grievor’s own testimony must be considered. He believed that his condition was in fact improving between February 2012 and the termination of his employment. His evidence was, however, that the severity of pain experienced during a flare-up was not improved as of the time of his testimony in these proceedings. Given the evidence that he called in sick only when experiencing debilitating back pain, his suggestion of improvement starting in 2012, even when viewed in light of Dr. Andersen’s report, is difficult to reconcile with his attendance record in 2012 and 2013. The grievor testified that he may have seen his doctor during the final month of his employment and that his doctor at that time shared his optimism or at least believed that he “had the potential for improvement.” There is no such medical evidence before me.

145I accept that at least on the analysis that the Employer asserts is appropriate here, it has satisfied its onus to establish that the grievor was incapable of regular attendance into the future, and that absenteeism would continue to be excessive. I have considered the grievor’s 2010 and 2011 absenteeism in light of his WSIB injury and his deconditioned state that resulted from such injury. Having considered the record in its entirety, however, in light of the medical evidence and of the degenerative and chronic nature of his condition, I am satisfied that the Employer has met its onus with respect to prognosis, and that the Union has not rebutted with objective evidence the inferences properly drawn from the grievor’s record.

146The Union was clear, however, that to decide the grievance on the basis set out above would be to miss the critical point. In Counsel’s submission, the duty to accommodate is the “heart of this case,” and must inform my determination of whether the grievor’s absenteeism was “excessive,” whether there was a prognosis for improvement, and ultimately whether termination of employment was justified.

147The Supreme Court of Canada in Meiorin, supra, articulated a three-part test for determining whether a prima facie discriminatory standard is a bona fide occupational requirement:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. (para 54)

148The Union asserts prima facie discrimination on grounds of disability here. While there was no argument before me that the first two of the three steps described by the Court in Meiorin were not satisfied, the Union took the position that the Employer failed to meet its onus of establishing that it could not “absorb” the grievor’s “above average” absenteeism without undue hardship.

149The Employer did not contest the Union’s allegation of prima facie discrimination, and accepted that “where the employee’s absences are caused by a disability under the Human Rights Code, the parties’ obligation to accommodate. . . must be considered.” It took the position, however, that it fulfilled its obligation to accommodate the grievor, as that duty has been described by the Supreme Court of Canada.

150It is the Employer that bears the onus of demonstrating that it has met its obligation to accommodate to the point of undue hardship. The duty to accommodate is to be construed in a broad and purposive manner. The Court in Meiorin noted “the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer” (para 54) and emphasized the importance of being “sensitive to the various ways in which individual capabilities may be accommodated.” (para 64)

151It is not any hardship that meets the applicable test, but rather only hardship that is “undue.” The Court in Meiorin stated as follows:

The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. When referring to the concept of “undue hardship,” it is important to recall the words of Sopinka J. who observed in Central Okanagan School District No. 23 v. Renaud . . . that “[t]he use of the term ‘undue’ infers that some hardship is acceptable; it is only ‘undue’ hardship that satisfies this test.” It may be ideal from the employer’s perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. (para 60)

152As argued by the Union, the jurisprudence, including that of the Supreme Court of Canada, is clear that the duty to accommodate and the undue hardship standard must be assessed in the context of the specific circumstances of any given case. In Hydro-Quebec, supra, the Court emphasized the “individualized nature of the duty to accommodate” and “the variety of circumstances that may arise,” and was clear that “rigid rules must be avoided.” (para 17)

153The evidence establishes that the Employer offered the grievor support through the EAP and made repeated and ongoing efforts to assist him in attending at work and performing his duties. The grievor acknowledged that he was “continually offered” such accommodation by the Employer but that he declined all such offers. That he did so reflected the fact that there were “no workplace barriers” affecting his attendance. As Dr. Muhsen noted, it was simply the grievor’s illness in itself that precipitated flare-ups of pain that prevented him from attending work. The grievor’s evidence and the medical evidence is clear that he had no restrictions or limitations while at work and was in fact able to perform his full duties when able to report to work.

154Although both Dr. Andersen and Dr. Muhsen were of the view that the grievor had no restrictions or limitations on his ability to perform the duties of the YSO when he was able to attend work, Dr. Andersen reported that he had difficulties with twelve hour shifts and with sequential shifts. Despite the doctor’s conclusion that the grievor could perform his duties without accommodation, in May 2012, the Employer nonetheless raised with him his “potential need for supports” such as a schedule modification. The evidence establishes that such offer was also declined by the grievor as unnecessary.

155There is no dispute that the only accommodation required by the grievor was that the Employer accept “above average” absenteeism. The period following the grievor’s WSIB injury in May 2010 was an exception to this. The grievor required modified duties upon his return to work in November 2010, and these were provided.

156The Employer acknowledged as well its obligation to consider other employment options before discharging the grievor from full-time employment. Mr. O’Brien testified that the possibility of a regular part-time position was addressed, but not pursued, as regular part-time status would not address the sporadic nature of the grievor’s absences. Mr. O’Brien noted as well that the Employer considered health re-assignment, but again did not pursue this option, given the fact that the grievor was able to perform the full duties of the YSO position when at work.

157The Employer accepts that it is required pursuant to its duty to accommodate to take steps, to the point of undue hardship, that permit an employee who is able to work to do so. On the evidence before me, I agree with the Employer that there “can be no claim” that it failed to accommodate the grievor at least “in terms of assisting him to attend work or perform his duties while he is at work.” I find that the Employer has satisfied its onus of demonstrating that it did fulfill its duty to accommodate understood in such terms. The Union in fact took the position in these proceedings, and the grievor was clear with the Employer over the course of his attendance meetings, that there was no accommodation which the Employer could offer that would assist the grievor in attending at work. Rather, as noted by the Union, there was “nothing to ask for” here beyond the Employer’s acceptance of the grievor’s absenteeism.

158That, of course, is what is fundamentally in dispute here. The Employer suggests that the Union misconstrues the nature and scope of the duty to accommodate insofar as it asserts that the Employer had a duty to also accept the grievor’s absenteeism unless undue hardship was demonstrated. It emphasizes that a “fundamental feature” of the employment relationship is that an employee is to attend at and perform work in exchange for wages and benefits. In its submission, the duty to accommodate does not contemplate the amendment of such fundamental terms of the employment contract. While the Employer adduced evidence in these proceedings as to the impact of the grievor’s absenteeism with respect to cost, the backfilling process, and the performance of the Primary Worker role, it did not suggest that this demonstrated undue hardship. Rather, it took the position that the duty to accommodate does not require that it “tolerate excessive absenteeism.” Therefore, while the Union submits that the Employer must demonstrate that acceptance of the grievor’s absenteeism resulted in undue hardship, the Employer’s position is that the Union does not “get into that ballpark” here.

159The Union relied upon a number of authorities in support of its position that the Employer’s duty to accommodate a disabled employee includes accepting “above average” absenteeism, unless the Employer demonstrates that it experiences undue hardship in doing so. In Town of Ingersoll, supra, the arbitrator considered the costs incurred by the employer in backfilling the grievor’s absences caused by migraine headaches and concluded that they were not “so substantial that they would alter the essential nature of the enterprise, or so significant that they would affect its viability.” (para 39) He determined that the employer had failed to accommodate the grievor’s disability, insofar as it did not demonstrate that her ongoing absenteeism due to migraine headaches resulted in undue hardship.

160The Union also relied upon the decisions of the Canadian Human Rights Tribunal, the Federal Court and the Federal Court of Appeal in City of Ottawa and Desormeaux and City of Ottawa and Parisien, supra.. Ms. Desormeaux and Mr. Parisien both filed complaints of discrimination on grounds of disability with the Canadian Human Rights Tribunal when their employment was terminated on grounds of innocent or chronic absenteeism. While the Union relied upon the Tribunal’s 2003 decision in the Parisien matter here, the Tribunal’s decision in Desormeaux was not put before me for consideration. The evidence before the Tribunal in Parisien established that the complainant had been absent for 1664 full days and 33 partial days over 18 years of employment, and that his absences were “mostly related to illness.” The Tribunal noted that there are “two stages involved in reviewing innocent absenteeism dismissals,” commenting that “[t]he first is conducted in accordance with labour relations law and the second in accordance with human rights law.” (para 62) It stated that it did not “see how one can assume that once an employer properly concludes that an employee’s prognosis for attendance is poor, the employer’s duty to accommodate under human rights law is satisfied.” The Tribunal found that prima facie discrimination was established insofar as the decision to terminate employment was based at least in part on disability. It was clear that the employer was required to “proceed through the BFOR analysis articulated by the Supreme Court of Canada in Meiorin.” After noting that the first two stages of the three-step Meiorin inquiry were not in issue, it considered whether the employer had demonstrated that it was “impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer.” (para 65) In concluding that the employer failed to establish that accommodating the “potential innocent absenteeism” of the complainant would have imposed undue hardship on it, the Tribunal stated as follows:

Besides, I fail to see how “tolerating” absenteeism cannot constitute an acceptable type of accommodation. Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work, from time to time. The issue to be decided is whether this “tolerance” of a certain level of absenteeism would impose undue hardship on the employer, taking into consideration all of the appropriate factors. (para 66)

161The Tribunal’s decisions in both the Parisien and Desormeaux matters were reversed in 2004 by the Federal Court on application for judicial review. In considering the Tribunal’s decision in Parisien, the Court upheld the finding of prima facie discrimination. It accepted that the onus then shifted to the employer to satisfy “the three-part test relative to accommodation” as set out by the Supreme Court in Meiorin. In the Union’s submission, the Court then proceeded to apply an “undue hardship analysis,” in accordance with the “established approach” articulated in Meiorin. In allowing the application for judicial review of the Tribunal’s decision in Parisien, the Court stated:

The Tribunal found that the employer had failed to show that accommodating absenteeism was not a reasonable accommodation, as required by Meiorin, supra. The question is whether this conclusion meets the applicable standard of review of reasonableness simpliciter. In my opinion, it does not.

The factual context here is the employment relationship. That relationship is subject to the [Canadian Human Rights] Act, but the fact remains that the nature of the bargain between the parties is that the employee will appear for work on a regular and reliable basis and the employer will pay for the service. Excessive innocent absenteeism has the potential to nullify that relationship . . . .

The record here shows a horrendous level of absenteeism from the time Mr. Parisien began his employment with the employer. The absenteeism of 1,644 full days and 33 part days is only a portion of the absenteeism, that is from 1984 to February 1996. That appears to be a rate in excess of 30%. It is not reasonable, in my opinion, to require the employer to tolerate this. (paras 113 – 117)

162The Federal Court’s decision in the Desormeaux matter was appealed, and the Union referred to and relied upon the 2005 decision of the Federal Court of Appeal. The Court reaffirmed that once prima facie discrimination was established, the three-step test in Meiorin was to be applied. It stated as follows:

There is nothing in the Tribunal’s decision to require employers to indefinitely maintain on their workforce employees who are permanently incapable of performing their jobs. Nor are employers required to tolerate excessive absenteeism or substandard performance. On the unusual evidence in this case, this complainant is fully capable of doing her job, when she is not suffering from one of her periodic headaches. Moreover, her future rate of headache-related absenteeism is predicted to be at a level which her employer could easily accommodate without undue hardship. The employer has therefore merely been required to reasonably accommodate her as mandated by the Canadian Human Rights Act and according to the legal test of undue hardship established in Meiorin. . . . (para 21)

The Court noted therein that the “future rate of headache-related absenteeism” was predicted to be “about 6.5 full days and 1.25 part days per year, well below the absenteeism rate of the top 25% of OC bus drivers.” (para 18)

163While I have considered such earlier authorities relied upon by the Union, the Supreme Court of Canada’s 2008 decision in Hydro-Quebec is important in that it directly addresses “the interaction between the employer’s duty to accommodate a sick employee and the employee’s duty to do his or her work.” (para 1) On the facts before the Court, the complainant suffered from health issues that constituted a handicap within the meaning of the applicable legislation. Her employment was terminated based on her inability to work “regularly and steadily” because of her health. She had been absent from work for 960 days between January 1994 and July 2001, and as of the time of her dismissal in July 2001, had been absent since February 2001. The employer had made a number of attempts to accommodate the complainant. Her own physician and a psychiatric assessment obtained by the employer offered a bleak prognosis with respect to future attendance. An expert retained by the Union, however, was of the view that the complainant could “work in a satisfactory manner” with a “complete change” in her work environment. The arbitrator hearing her grievance concluded that implementation of the conditions suggested by the Union’s expert would cause the employer undue hardship and he denied the grievance.

164The Court in Hydro-Quebec reaffirmed the “individualized nature of the duty to accommodate” (para 17) and “the need to develop standards that accommodate the potential contributions of all employees insofar as this can be done without undue hardship” (para 12) as addressed in Meiorin. As also emphasized by the Union, it stated that “rigid rules must be avoided,” (para 17) and that “the employer must be flexible” in applying a prima facie discriminatory standard. The Court was clear, however, that this was so if “such flexibility enables the employee in question to work and does not cause the employer undue hardship.” (para 13)

165The Court expanded on this as follows:

As L’Heureux-Dube J. stated, the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. (para 14)

However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration. . . . (para 15)

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. (para 16)

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. . . . Likewise, in the case at bar, Hydro Quebec tried for a number of years to adjust the complainant’s working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship. (para 17)

Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non- discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Quebec (Procureur general) v. Syndicat des professionnelles et professionnels du gouvernement du Quebec (SPGQ). . .: “[in such cases,] it is less the employee’s handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship”. . . . (para 18)

The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. (para 19)

166As emphasized by the Union, the Supreme Court of Canada in Hydro-Quebec reaffirmed the three- part test set out in Meiorin. Counsel argues as well that the facts before the Court in Hydro-Quebec are distinguishable from those in issue here. The evidence before the Court established a high level of absenteeism over a number of years culminating in the complainant’s absence from the workplace for several months prior to termination. The prognosis with respect to future attendance was poor. The employer had made significant efforts to accommodate her. In the Union’s submission, it is critical to note that on the facts before the Court, the complainant had for some time been unable to provide any service in exchange for remuneration as contemplated by the terms of the employment contract and there was no prospect of change in the reasonably foreseeable future. The Union suggests that the Court’s decision in Hydro-Quebec must be understood as one made on the basis of those extreme facts, considered in accordance with the established approach set out in Meiorin.

167While the Supreme Court of Canada did, as argued by the Union, reaffirm the individualized nature of the duty to accommodate, it also addressed the purpose of such duty. Specifically, it stated that the duty to accommodate is intended “to ensure that an employee who is able to work can do so,” but that it is not intended to “completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.”

168I accept Union Counsel’s submission that the facts before me differ from those that were before the Court in Hydro-Quebec. While the Union acknowledges that the grievor’s absenteeism in issue here was “high,” there is no doubt that Mr. Bartolotta did attend work and did perform his full duties when he was not experiencing flare-ups of debilitating back pain resulting from his disability. Unlike the circumstances considered by the Supreme Court, the case before me is not one in which the grievor was indefinitely unable to perform any work in exchange for remuneration.

169That said, while the grievor’s absenteeism record before me was not as extreme as the record considered in Hydro-Quebec, the Employer has demonstrated here that it was nonetheless excessive and that excessive absenteeism will likely continue into the future. Despite the distinction between the facts here and those considered in Hydro-Quebec, I am satisfied by the Employer that the grievor was, at the time of termination, “no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.”

170I agree with the Employer that to require it to continue to accept what I have found to be excessive absenteeism in these circumstances as part of its duty to accommodate is, in fact, to require that it “completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.” The Supreme Court of Canada has been clear that this is not the purpose of the duty to accommodate.

171Other decision makers also accept that the duty to accommodate does not encompass changing the fundamental essence of the employment contract. In Sault Area Hospital and CAW, supra, the evidence established absenteeism over a number of years ranging from 31 to 126 days in a year, resulting in part from a workplace injury and in part from “undisclosed maladies.” This too was not a case in which the grievor was unable to deliver any service as contemplated by the employment contract. The Union argued that the employer had failed to accommodate the grievor by providing her with suitable duties. Arbitrator Harris concluded that the grievor’s absenteeism was excessive, that it was not likely to improve in the future and that the grievor had been provided with a position within her restrictions. He then stated as follows:

Her rate of absenteeism had reached the point of undermining the employment relationship. She had been accommodated in her position yet her absenteeism continued at unacceptable levels. Any further toleration of such absenteeism would have been an undue hardship on the Hospital. In Hydro-Quebec, supra, the Supreme Court of Canada dealt with the standard for assessing such undue hardship. . . . (para 53)

In this case, the Hospital has respected the grievor’s fundamental rights in having accommodated her by making the necessary alterations to her workplace and duties. Regrettably, the grievor is not able to attend work regularly even though her job is within her restrictions. The Hospital’s duty to accommodate has ended because the grievor is no longer able to fulfill her part of the bargain. That is, she is no longer able to fulfill the basic obligations of her employment for the foreseeable future. If this case rested upon her workplace injury as the sole reason for her absences, the termination of her employment would be upheld in accordance with the law as laid down in Hydro-Quebec. . . . (para 54)

172In Telus Advanced Communications, supra, on an application for judicial review, the British Columbia Supreme Court noted that the arbitrator found that the grievor suffered from a disability and that her dismissal for reasons of absenteeism related to disability was prima facie discriminatory. The arbitrator had concluded that the grievor’s absenteeism was excessive, noting that she had been absent in 2008 up to her dismissal in October for 32 days. Again, this was not a case in which the grievor was unable to provide any service as contemplated by the employment contract. The arbitrator found, however, that the grievor was at the time of termination not able to attend work on a regular basis. The Court stated as follows:

The arbitrator recognized that there was no evidence quantifying the financial impact of the grievor’s absences or suggesting there was any difficulty replacing her when she was absent. However, he found that Ms. Laviolette had “spent considerable time and effort over the years trying to manage” the grievor’s absences. He concluded that it would not be reasonable to expect the employer to simply continue to tolerate her absenteeism and “there has to be limit to accommodation.” (sic) (para 46)

The arbitrator’s analysis and conclusion was consistent with the general principle stated by the Supreme Court of Canada in Hydro Quebec. The court said the duty to accommodate does not change the fundamental nature of the employment contract, which is “the employee’s duty to perform work in exchange for remuneration.” (para 47)

173In City of Toronto, supra, Arbitrator Barrett upheld discharge on grounds of innocent absenteeism, noting that the grievor’s absenteeism over a four year period ranged from a high of 109 days to a low of 35 days in 2012 up to the time that employment was terminated in May. Absences resulted from disability. The employer argued that the “duty to accommodate does not include accommodating continuous excessive absenteeism.” (para 92) While the Supreme Court of Canada’s decision in Hydro-Quebec was not referenced in the award, the arbitrator concluded as follows:

First, the employer is bound to accommodate the disability as best it can up to the point of undue hardship. . . . (para 95)

It is important to distinguish between accommodation of a disability, which an employer is required to offer, and tolerance of a high rate of absenteeism on an on-going basis, which an employer is not required to tolerate. At the point where an absence caused by disability undermines or fundamentally breaches the employment relationship the employer is entitled to terminate it. (para 98)

174In Toronto District School Board, supra, Arbitrator Whitaker commented as follows in the context of a grievance pertaining to paid leave for religious observance:

Following the hearing in this matter, the parties referred me to a decision of the Human Rights Tribunal of Ontario in Markovic and the O.H.R.C. and Autocom Manufacturing et al., . . . where the Tribunal dealt with a similar issue . . . .

After a thorough review of the jurisprudence, the Tribunal at paragraph 38 notes that the duty to accommodate must “co-exist” with the fundamental features of the employment relationship – and that this means the obligation to perform labour in return for compensation:

I view the conclusions of the Court of Appeal to be consistent with another principle woven into the cases in this area, which is that the duty to accommodate co-exists with the regular contract of employment [see Hydro-Quebec . . .]. The regular contract of employment is based on the exchange of services for pay. Typically, the duty to accommodate is about the design and modification of workplace requirements to enhance the ability of certain employees to participate in the workplace without, at least in the first instance, dislodging the assumption of services for pay.

The Tribunal in its reasons, refers to a recent decision of the Supreme Court of Canada in Hydro Quebec. . . . This case dealt with the employer’s obligations to accommodate an ongoing disabled employee. The Court . . . reiterates the notion that the purpose of accommodation generally is to enable the performance of work in exchange for wages. . . .

The Court observes that an employer is obliged to make accommodations which will first and foremost, provide the employee with the opportunity to work. The Court notes that it remains the case that the duty to accommodate does not change the essence of the employment contract – which is to “perform work in exchange for remuneration.”

Whether employer accommodation is directed to the needs of a disabled employee or an employee seeking to participate in religious observance, the goal and objective should generally be the same. That goal is to assign work in such a manner and to support and enable the employee to provide labour – in return for wages. . . .

Whether the circumstances that require accommodation are disablement, or the need to participate fully in one’s religious beliefs, the employer is obliged to reconfigure the work and the workplace so as to enable the employee to work the hours that would otherwise be available – absent the disablement or need for religious leave. (pp. 189 – 190)

175In Liquor Control Board of Ontario, supra, the Grievance Settlement Board had before it a grievance challenging the employer’s decision to convert the grievor’s employment status from full-time to part-time where he was permanently incapable of working full-time hours due to disability. The Board stated as follows:

When the employer made the decision to alter his status, the grievor had been absent from full- time employment at least one hour for every three hours he actually worked for a period of nearly six years. In my view, that level of absenteeism was clearly “excessive” for purposes of the just cause test. At that point it had become clear . . . that there was no prospect of improvement, that he would continue to be absent from full-time hours of work to at least that degree. Applying the just cause standard applicable to all full-time employees, there was then cause to terminate the grievor’s full-time employment. Since there was no accommodation that would enable the grievor to provide improved attendance, it was not a breach of the grievor’s right to equal treatment under the Code to remove him from full-time employment. In the words of the Supreme Court in Hydro-Quebec, the employer’s obligation to accommodate the grievor with notionally full-time employment ended when the grievor was “no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” (para 65)

176Having considered the evidence and the authorities before me, I reach the following conclusions. The grievor’s record of absenteeism over the relevant period was proven by the Employer to be excessive. The Employer also established that such absenteeism would likely remain excessive. The Employer was required to warn the grievor that his employment was in jeopardy before terminating it, and the evidence is clear that it did so on a number of occasions. It ultimately terminated his employment on the basis of innocent absenteeism. The grievor suffers from a disability within the meaning of the Code, and the absenteeism relied upon by the Employer largely resulted from such disability. The Employer does not contest the Union’s assertion of prima facie discrimination. The Employer was required to fulfill its obligations under the Code, and specifically, was required to first accommodate the grievor’s disability to the point of undue hardship. The Employer bears the onus of establishing that it did so. The purpose of the duty to accommodate is to ensure that an employee who is able to work has the opportunity to do so. The evidence establishes that the Employer fulfilled its duty to assist the grievor in attending at work and in arranging his workplace and duties to enable him to attend at and perform his work. Given the grievor’s excessive absenteeism and given that excessive absenteeism would likely continue, however, he was not able to “fulfill the basic obligations associated with the employment relationship for the foreseeable future.” To require that the Employer in these circumstances continue to accept what I have found to be excessive absenteeism in these circumstances as part of its duty to accommodate is, in fact, to require that it alter the fundamental essence of the employment contract. That fundamental essence is attendance at work and performance of work in exchange for wages and benefits. While the Supreme Court has affirmed a broad duty to accommodate, such duty is not intended “to completely alter the essence of the contract of employment.” The Court stated that the “duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” The Employer has demonstrated that it accommodated the grievor to the point of undue hardship and that it was not required to continue to accept his absenteeism as part of its accommodation duty.

177I therefore find that the Employer has established that termination of the grievor’s employment on the basis of innocent absenteeism was justified and that it fulfilled its obligation to accommodate him in accordance with the Code and with the collective agreement. The grievance must therefore be denied.