Back to Basics: Sick Leave

Larger employers and their employees usually don't have too much trouble with sick leave.  They have policies and processes in place for taking sick leave, often with short-term and long-term disability insurers who will bear the direct costs to employees, internal HR staff to facilitate the return to work, and a sufficient workforce to be able to fill in any gaps caused by extended or unforeseen absences.

But start looking at small and mid-size employers, and you get myriad issues.  I've seen plenty of employers with no written contract and no policy setting out entitlements to sick pay, but whose practices are to pay salaried employees for the occasional sick day, etc...until they start running into more frequent or longer-term absences.  Then several questions start to arise:

1. Must an employer continue to employ an individual despite extended or frequent absences?
2. When an employee is able to perform only a part of their regular duties, how does this interact with sick leave?
3. Must an employer pay a salaried employee who is on sick leave?

Absenteeism is a difficult issue all around, because it's a pretty fundamental aspect of the employment contract that the employee has to show up.  That being said, where an employee is absent frequently or for an extended period of time due to a medically documented disability, an employer usually can't regard such absences as being misconduct.  Indeed, not only is a "for cause" termination off the table in such cases, but in many such cases even a "not for cause" termination (on notice or pay in lieu thereof) would be illegal, in violation of the Human Rights Code.

An employer must reasonably accommodate disability up to the point of "undue hardship".  Undue hardship is a high threshold.  We aren't talking about minor inconveniences or expenses; what many employers find difficult is the understanding that the issue will be viewed from the employee's side as well:  If the employer is entitled to refuse to accommodate, in many cases this will have the effect of terminating the employee's employment, just because they have been afflicted by a disability.  This is a big deal, with the result that courts and tribunals will expect an employer to bend over backwards to avoid this consequence.  Thus, hardship has to be very significant before it will become "undue".

Where an employee has been absent for extremely lengthy periods of time, and there can be no reasonable expectation of a return to work in the foreseeable future, this can sometimes generate 'frustration' of the contract, entitling the employer to terminate it.

The duty to accommodate is a double-edged sword.  An employer is obligated to reasonably accommodate an employee's medical needs:  If I need light duties and reduced hours, the employer should require only light duties and reduced hours (unless doing so would generate "undue hardship") for as long as it is necessary.  But on the flip side, I can be required to accept accommodated duties.  If I get fatigued and so can only work 4 hours per day, the employer is entitled to insist that I work those 4 hours per day.  I can't say, "Well, I'd rather just stay home on sick leave" if the employer is offering modified duties.  To that end, an employer is entitled to insist on being made aware of the employee's functional limitations.

However, an employee can't insist on being paid for time not at work, unless they're contractually entitled to do so.  If there's a short term disability insurer, the employee can seek money from there.  If there's a paid sick bank, of course, the employee can draw against it.  But in the absence of such things, an employee should not expect the money to keep coming in when they aren't going to work, and should consider looking into eligibility for EI sick benefits.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

When will the HRTO refuse to defer an Application?

"The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues."

That sentence has been part of literally hundreds of decisions from the Human Rights Tribunal of Ontario.  Because the Supreme Court (in the Parry Sound decision) found in 2003 that labour arbitrators have parallel jurisdiction to interpret and apply human rights legislation, it is common practice for any bargaining unit member feeling that their human rights have been violated to both grieve the issue and make an application to the HRTO.  This is legitimate.  However, because the HRTO doesn't want to proceed with parallel proceedings, it takes the position that, if there's a grievance moving forward, it will let the grievance go first.

There's a certain logic to this.  Firstly, grievances often include matters above and beyond human rights-based allegations, which the HRTO can't deal with.  So if only one proceeding needs to proceed, it will usually be the grievance.  Secondly, the HRTO is well-positioned to evaluate after the completion of the grievance process whether or not there are outstanding human rights issues that need to be dealt with.  Thirdly, labour arbitrators are privately paid by the parties (i.e. the union and the employer), whereas the HRTO is government-funded with limited resources, so to the extent that it can defer part of its caseload to others, it will.

To applicants, however, there are certain advantages to the HRTO.  Yes, they have the union to assist them in the grievance process, but there are also free legal services available to applicants to the HRTO.  Ultimately, the big difference is that the individual applicant drives an HRTO proceeding, whereas it's the union (taking into account the needs of the grievor but also the rest of the bargaining unit) driving grievance proceedings.

So for a grievor who has grown disillusioned with his or her union representation (which happens fairly frequently), it's a bit of a kick in the face that they are forced to proceed with the grievance before they can move forward with the HRTO application.  And as an added bonus, if the union and the employer reach a settlement of the grievance - even over the objections of the grievor - there is a good chance that the HRTO will conclude that the subject matter of the proceeding has been "appropriately dealt with", and not proceed with the application.  (See Rysinski v. Aecon Industrial.)

It is in this context that I find the recent HRTO decision in Dalrymple v. 412506 Ontario Ltd. interesting.  Ms. Dalrymple worked for St. Jacques Nursing Home, and her claims are apparently as follows:  On June 30th, 2009, she suffered an injury in the workplace, and provided a doctor's note substantiating her absence from work to August 10th, at which point there was a follow-up appointment scheduled.  Due to a family emergency, she was unable to attend that appointment, but ended up getting back to the doctor 3 days later for a note addressing the relevant period.  In the mean time, the employer immediately jumped on her temporarily-unsubstantiated absence and terminated her employment.  After she began a Labour Market Re-entry program under the WSIA, the employer suddenly contacted her (no doubt finally having received better legal advice) to offer her accommodated work, which compromised her position in the Labour Market Re-entry program.


Ms. Dalrymple initiated a grievance in September 2009.  There is no word as to what happened to the grievance since then, except that the union has indicated that it has now decided to refer the grievance to arbitration and the employer has agreed to waive the timeframes for referral of the grievance.  The HRTO decision notes that Ms. Dalrymple "asserts that the union has not represented her very well."  In June 2010, she commenced the HRTO application.

Now, with the grievance potentially moving to arbitration (as well as some related issues that may be going to WSIAT), the employer has asked to defer the HRTO Application.  And those who may have thought that deferral is automatic...have been proven wrong.

[15]           I do not find it appropriate to defer this Application because of the outstanding grievance.  The grievance was filed almost two years ago and the union has recently advised that it has decided to refer the grievance to arbitration.  As of the date of this Interim Decision, the Tribunal has not been advised of any date set for arbitration and has not been provided with documentation showing that the grievance has in fact been referred to arbitration.

[16]           The referral to arbitration is also well after the Tribunal’s process was initiated.  The parties have filed substantive pleadings and a mediation has been held.  At this stage of the Tribunal’s proceedings I do not find it appropriate to defer the Application because of the outstanding grievance.

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This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Web 2.0 in the Workplace: Caught Red-Handed

Sometimes, people seem to think that a post on Facebook is like a secret whisper to a confidante.

It isn't.

Not only is it visible, potentially to countless people, but it's in writing, and is essentially indestructible.  It's like carving something in stone and then prominently displaying it on the town square.  I once saw somebody convicted criminally for an offence, where the Crown relied heavily on the fact that the person admitted to the crime on Facebook.  Also, in personal injury suits, there is increasing jurisprudence requiring plaintiffs to produce their Facebook records, and if those records don't mesh with your tearful tale of how lonely and inactive you've been since the accident, guess what happens?

In the employment context, the main lie that Facebook could give up relates to "abuse of sick leave".  You've called in sick, faked your best cough, told your boss that you're just going to lie in bed for the day...then your best friend posts and tags a cell phone photo he takes of you when you catch a foul ball at the Jays game, inconveniently incorporating a datestamp into the corner of the image.  Or worse, you're on a paid or unpaid leave from work, saying that you can't perform the essential functions of your job because of a disability, and you start posting statuses about how much you're enjoying playing hockey, or golfing, or white water rafting.  It's bound to raise eyebrows if anyone at work catches wind of it.

I've seen fact patterns involving a fellow off work with back pain, who ended up in the local paper when he won a golf tournament.  Oops.  Or another individual who was off work because of a knee injury, but a local paper ran a community interest story about people skating at the local community centre, and he happened to be caught in the photograph they ran.  These are fundamentally similar.  And the conclusion is usually that the employee is in deep trouble when this happens.  Or how about the teacher who, while off on disability leave, took another teaching position with a different school board?

As always, whether or not this sort of thing constitutes just cause for termination is deeply contextual.  The fact that somebody is alive when not at work is not, in and of itself, misconduct, and even where there is misconduct, its severity will vary significantly.  An employer, getting word that an employee seems to be doing something incongruous with their claimed illness, needs to investigate, but should not immediately jump to conclusions.  As I recall, the fellow with the knee trouble ended up getting reinstated because it was concluded that his failure to return to work when he was able was not bad faith - when his doctor gave him a note saying that he needed x days off, he figured he'd go back to work after x days, and didn't realize that he should have returned to work immediately upon becoming able.  Another relevant factor is whether the leave is paid or unpaid.  Where an employee is on an unpaid disability leave and working for another employer, it's usually just dishonesty.  Where the employee is on a paid disability leave and working for another employer, it is usually fraud - the employee is, for all intents and purposes, stealing from the employer (or the disability insurer), which is much more severe.

The two main challenges for an employer are, firstly, that the employer will not always know the nature of the medical condition, and in fact is not entitled to know the nature of the medical condition, and secondly that the employer will occasionally have difficulty establishing that the employee understood their obligations in respect of their sick leave.  I've seen arguments made that "The employer didn't contact me to return to work, so I thought I was okay."

So an employer, faced with prima facie evidence that the employee is abusing sick leave, must move cautiously.  Surveillance evidence, under these circumstances, has usually been found in Canadian jurisprudence to be admissible, so talk to a lawyer about getting a PI on the case to flesh out the case beyond the strict contents of the facebook status, photo, or other report.  Remind the employee of his obligation to report for work if he is able to do so.  Conduct an interview with the employee to establish/confirm the specific medical limitations which prevented him from attending work, and ask him what extra-curriculars he engaged in while off work (give him the opportunity to be truthful...or not), and consider getting an independent medical expert to determine whether or not the activities he engaged in were consistent with the medical limitations he described.  (The golfer argued that his doctor had suggested golf as a treatment for his back problems.  The argument didn't fly in that context, but the underlying principle is sound:  Perhaps I have a physical job that a disability prevents me from doing...well, just maybe the kinetics of sport x are not the same, and therefore my limitations on working may not apply in the same way to my sport.)

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.