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In Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933, a recent decision from the Nova Scotia Supreme Court, Justice Gogan confirmed the reasonableness of Arbitrator MacKeigan’s decision to conditionally reinstate an employee who had been discharged for excessive absenteeism but who was unaware of the severity of her medical issues. Evidently, her union and her employer had also been left in the dark with respect to her medical condition.

The employee in this case was discharged for excessive absenteeism. At the time of her discharge, the employee had received multiple warnings from her employer and her union in order to improve her attendance. However, unbeknownst to the parties, the employee was suffering from a major depressive disorder. This condition was a side effect of the medication she had to take to treat a severe form of cancer she was fighting a few years prior. Between 1978 and 2006, the employee had an unblemished employment record with her employer.

Although back to full duties following her recovery from her cancer, the employee was still experiencing constant fatigue. A physician eventually diagnosed the employee with a major depressive disorder, however, he only reported to the employer that she was unfit to work without giving the employer details of her condition. A year later, she was found to be fit to return to work, but she continued to frequently miss work for the following 3 years. During this period, the employer was informed that the employee was being treated by a psychologist however it received no further information regarding the employee’s condition or need for accommodation. Eventually the employee was disciplined and received a formal letter which warned her that continued absences from the workplace could result in termination. The absenteeism continued and the employee was discharged. The union filed a grievance on her behalf.

At the arbitration, the employer argued that the issue should be decided based on the information that was given to the employer at the time of the discharge. Moreover, the employer took the position that it owed no duty to accommodate as it lacked the information necessary for its obligation to be triggered.

Arbitrator MacKeigan found that the test for excessive absenteeism was met, however, he pointed out that the real issue in this matter was the fact that the parties, including the employee, had no information with respect to the employee’s medical condition. Arbitrator MacKeigan relied on the Supreme Court of Canada decision in United Steelworkers of America, Local 6869 v. Cie miniere Québec Cartier, in his reasons for decision. He explained that:

Had this information been known to the employer at [the] time of termination, then there is no question that the information as to the disability would have [had] to been considered by the employer under the duty to accommodate… it certainly would have influenced the decision of the employer, simply because of its existence, who would have been required [to take it] into account.

Although he found that the termination was justified based on the information the employer had at that time, the Arbitrator’s solution was to order a conditional reinstatement of the employee and for the employer, with all the information in hand, to make a determination as to whether it could accommodate the employee without any undue hardship. He opined that he was allowed to consider and examine post termination evidence or after-acquired evidence that existed prior to the employee’s dismissal even though it was not provided to the employer.

Justice Robin Gogan found Arbitrator MacKeigan’s decision reasonable. In regards to the Québec Cartier decision, she drew the following conclusions:

[62] The… authorities support the admission of evidence acquired after discharge but which relates to the circumstances prior to or at the time of discharge. Evidence respecting changes in circumstances after discharge is distinguishable.

[64]…The test for admissibility is whether the information is relevant in that it sheds light on the reasonableness and the appropriateness of the dismissal.

Finally, on the topic of accommodation, Justice Gogan stated that:

[78] …the authorities on the point did not deprive the grievor of the right of accommodation simply because, through no fault of her own, information supporting the need was not made available to the employer. As I understand the reasoning, the nature of the depression prevented the grievor from recognizing her disability and asking for accommodation. Failure to recognize the particular nature of depression would deprive the grievor of protections afforded by the human rights legislation…

This case is a great outcome for human rights in general but more specifically, for employees with mental health issues. It is often easier to identify medical issues that are physical, but employers need to be aware of what lies beneath. Mental disabilities can sometimes be more difficult to identify and thus create problems in diagnosis, treatment and eventually workplace accommodation. An employer’s obligation does not begin and end with the medical certificate – it must request further information. This decision will raise awareness and help protect employees who, at their most vulnerable state, suffer the biggest losses.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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