The following 2011 arbitral decisions clarified the law with respect to terminations for workplace violence, what medical information an employer is entitled to, and attendance management.
Kingston v. CUPE, Local 109:
An employee with 28 years of service with the City of Kingston had a history of angry outbursts, and had received many warnings and a suspension as a result. After having received Bill 168 training, and just two days after having taken an anger management course, the grievor had an angry confrontation with a colleague, who was also the president of the union’s local. The president told the grievor, “Don’t talk about Brian – he’s dead”, to which the grievor responded, “Yes, and you will be too”. The president reported this threat to the grievor’s supervisor and, following an investigation into the incident, the employer terminated the grievor.
In upholding the termination of this long-service employee, Arbitrator Newman relied upon the grievor’s anger issues, lack of remorse, and failure to take responsibility for her actions.
This decision is one of the first to interpret Bill 168 in detail. In it, the arbitrator stated that Bill 168 has “changed the law of the workplace in a significant way”, and employers are now required to treat seriously and investigate all threats of violence. This decision also confirms that Ontario arbitrators will consider the potential for future threats to workplace safety when they are assessing the reasonableness of a disciplinary penalty.
Providence Care, Mental Health Services v. OPSEU, Local 431:
The grievor was an RPN with a history of excessive absenteeism: he was absent 44 days in 2006, 69 days in 2007, and 52 days in 2008. When the grievor called in sick for three days in January 2009, the employer requested a medical certificate. The note the grievor provided stated only that he was “absent from work for medical reasons”. The employer advised the grievor that this cursory note was insufficient, and denied him sick leave benefits.
Arbitrator Surdykowski upheld this denial, finding that, before sick leave benefits are provided, an employer is entitled to sufficient information to confirm the reason for the grievor’s absence. The arbitrator confirmed that employers are not obligated to accept cursory medical notes as proof of illness and went on to state that the information necessary to confirm the reason for the absence may include the nature of the illness and the date of the employee’s visit to the doctor, even if this information is otherwise confidential, and/or will suggest the employee’s diagnosis.
Ottawa Hospital v. CUPE:
The grievor had been placed in the employer’s Attendance Management Program due to her excessive absenteeism. Once in the program, her absences continued to increase, to the point that she had 94 absences in a three-year period, and was absent 45 percent of the time. Since there was no sign that the grievor’s absenteeism would improve, the employer reduced her hours from full-time to part-time for six months. This temporary reduction in hours rendered the grievor ineligible for the employer’s benefit plan. The union grieved the reduction in hours, alleging that it was a layoff which, pursuant to the collective agreement,
could only be done on five months’ notice. Since no notice was given in this case, the union argued, the employer had breached the collective agreement.
Arbitrator O’Neil found that the reduction in hours was not a layoff, but rather a demotion, which the attendance management policy anticipated as a possible outcome of excessive absenteeism. The arbitrator further found that this outcome was a reasonable response to the grievor’s absenteeism in this case, since that the grievor had been warned, and her absenteeism was excessive, getting worse, and showed no signs of improvement.
Even though the union did not raise the issue of accommodation, and had in fact argued that the grievor did not require a reduced work week, the arbitrator found that the reduction in hours in accordance with the attendance management program was a form of accommodation.
Regarding the grievor’s loss of benefits for six months, the arbitrator confirmed that it is not discriminatory to compensate a person who, due to a disability, is working part time hours in the same way that other part-time employees are compensated.
This decision therefore makes clear that employers need not tolerate excessive absenteeism indefinitely. Further, a reduction in working hours in response to excessive absenteeism, when appropriate and when the employee has been warned that demotion is a possible consequence, will not be discriminatory.