In the recent decision of Cape Breton (Regional Municipality) v CUPE,
Local 933, 2014 NSSC 97, the Nova Scotia Supreme Court
upheld an arbitrator's decision to conditionally reinstate an
employee who had been terminated due to excessive absenteeism. The
employer was not aware that the employee suffered from depression
at the time of the termination.
The employee was diagnosed with cancer in 2006 and took a 23
month leave. During that time, she was also diagnosed with
depression. When she returned to work in 2008, the employer was
unaware of any specific medical condition or workplace limitations
that would require accommodation. Even after returning to work the
employee was frequently absent. While she provided reasons for the
absences, she never mentioned fatigue or depression. After several
discussions and warnings, she was terminated in January 2011. The
Union grieved on her behalf.
The Arbitrator who heard the grievance concluded that the
termination was justified based on the information the employer had
at the time, but ordered the grievor be reinstated conditional on
the employer reviewing their workplace practices to determine if
accommodation was possible. The Arbitrator concluded that had the
employer been aware of the employee's condition they would have
been obligated to accommodate her to the point of undue hardship
and that they were unaware of the condition because the grievor
herself was unaware of the impact of her condition, which in itself
was a symptom of her depression.
In reviewing the Arbitrator's decision, the Court examined
the reasonableness of admitting "after-acquired" evidence
when making a determination on the appropriateness of dismissal.
The Court concluded that it was reasonable for the Arbitrator to
consider this evidence because it would help determine the
reasonableness and appropriateness of the termination in the
circumstances. In considering this evidence, the reviewing
Court concluded that the Arbitrator's remedy of
conditional reinstatement was reasonable. The Court agreed with the
Arbitrator that requiring the employee to have told the
employer that she needed accommodation would fail to recognize the
nature of depression.
This case illustrates the challenges facing employers in
managing mental health issues in the workplace. It may be necessary
for employers to be proactive in recognizing situations where
an employee may be in a vulnerable situation that could entail
mental health issues such as depression. The fact that an
employee does not come forward with such problems will not always
be sufficient to meet the requirements of human rights
accommodation. Where such issues exist, accommodation to the
point of undue hardship will be required before termination for
excessive absenteeism will be justified. At some point a long
period of irregular attendance may well lead to frustration of
employment, giving rise to just cause for termination. However,
this is a difficult threshold to meet and will not alleviate the
duty to accommodate on employers where mental health
issues impede regular attendance.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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