THE EMPLOYERS' EDGE
Employee to be Reinstated Based on Post-Discharge Evidence of Mental Illness Unknown to Employer at Time of Termination, Arbitrator Rules
In a recent decision, an Ontario arbitrator has reinstated an employee who was terminated for prolonged absenteeism pursuant to his collective agreement. The reinstatement was based largely on post-discharge medical evidence of a mental disorder that was unknown to the employer when the decision to terminate the employee was made. Ultimately, the arbitrator held that the grievor’s disorder, a disability under the Ontario Human Rights Code (the “Code”), caused the absenteeism and that reinstating the grievor would not cause undue hardship to the employer.
The grievor was employed by TRW Canada Ltd. as a machine operator and by his union as an area representative. After an unsuccessful attempt to meet with his estranged children, the grievor became shocked and severely depressed. This resulted in the grievor missing both his union activities and his regular work for a total of 33 consecutive days.
Under the collective agreement, the grievor was required to notify the employer in advance of any absences. However, the grievor failed to do so on 22 of the 33 occasions he was absent from work. This triggered an automatic termination provision in the collective agreement dealing with unauthorized absences. After failing to show up for three meetings scheduled by the employer for the purpose of discussing his absences, the employer terminated the grievor. The union grieved his termination.
At the grievance arbitration, the union presented medical evidence indicating that the grievor had suffered from a borderline personality disorder at the time of his absences.
The union argued that the grievor’s mental disorder, a disability under the Code, was the direct cause of his inability to notify the employer of his absences. Moreover, the union argued that it would be improper to strictly enforce the application of the automatic termination provision if the evidence established that the grievor’s disability played a role in the triggering of the provision and without an evaluation of whether the employer could accommodate the grievor’s disability without undue hardship. Finally, the Union argued that reinstating the grievor would not cause undue hardship to the employer.
The employer made three arguments. First, the employer argued that the grievor failed to provide any medical documentation substantiating his absences prior to his termination. This despite having been provided with medical reports and an attending physician’s statement by his doctors outlining his condition. Next, the employer argued that there was insufficient evidence to indicate a nexus between the grievor’s condition and his failure to notify the employer of his absences. Finally, the employer argued that the union’s medical evidence was acquired after the termination and, as such, was inadmissible.
The arbitrator found that “…the employer was not provided with any information from the grievor, or the union, as to the specifics of any medical condition that prevented him from attending work or following protocol with respect to reporting his absences.” Despite this, the arbitrator held that the post-termination medical evidence was admissible under the circumstances since its purpose was to “shed light on the reasonableness and appropriateness of the dismissal”.
The arbitrator further acknowledged that “the employer had little choice but to take action against the grievor at the point of termination”. However, the arbitrator found that the grievor’s personality disorder had a sufficient nexus to the grievor’s failure to follow protocol for reporting his absences and that the termination of his employment was therefore discriminatory under the Ontario Human Rights Code.
Finally, the arbitrator held that since the grievor would be returning to work without any restrictions related to his disability and since the employer would not incur any costs associated with accommodating the grievor, that reinstating the grievor would not impose any undue hardship on the employer.
The lawyers at CCPartners are experienced in assisting employers with all issues surrounding terminations and accommodation with respect to human rights in the workplace.
The full decision can be found here.
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