Law Times

www.lawtimesnews.com Law TiMes / March 3, 2008 Page 13 I n 2001, Manon Laverrière was fired after 24 years at Hydro-Québec because of her chronic absenteeism — she missed 850 days of work over seven years. Now the Supreme Court of Canada is being asked to deter- mine whether the termination was justified or if the employer should have — and could have — done more to help her get back on her feet and become a productive employee. The court heard the argu- ments Jan. 22, with judgment reserved, but the heart of the matter revolves around the Que- bec Court of appeal, which held the dismissal was wrong because Hydro-Québec did not pursue every avenue in helping Laver- riere, who suffered from depres- sion and had attempted suicide. Pending the SCC decision, the complex case is in line with the current case law in the thorny issue of employer-employee rela- tions, says Tim Gleason at Sack Goldblatt Mitchell LLP. "This is a huge area of litiga- tion because companies often assume they've reached the end of their obligation in trying to accommodate their employee's disability," he says. without the safety net of hu- man rights tribunals and other legislation to protect employ- ees, the workplace would look remarkably different. If companies enacted human resources policies as strictly as business decisions, many mid- and low-level workers would be terminated at age 40, before they became a burden in terms of insurance benefit costs and lost time due to illness and fam- ily. Disabled people would find employment almost impossible. "The courts and tribunals have ruled, and we accept that disabled people have something to offer everyone and the econ- omy, and it benefits us all if we find ways to allow them to con- tribute," he says. "The test hasn't changed; it's being talked about in different terms, but employ- ers must accommodate them to point of undue hardship." The SCC will also look at the case of a Honda mechanic who was fired for chronic absentee- ism. He won a wage settlement and punitive damages at both levels in Ontario before the case was appealed. He claimed he had chronic fatigue syndrome, and the company not only harassed him but allowed his co-workers to ridicule him. In an other ironic case, a man who was fired because he failed a pre-employment drug test would have been better off to claim he was a marijuana addict, and thus had a disability, rather than to note he was simply a casual user of the drug. The alberta Court of appeal last month upheld the firing of the man after only a couple of weeks on the job. The court held the company had a right to make him take the test and to fire him when he failed it. Since he claimed to be a casual user, he had no option of claim- ing disability — which would have forced the company to help him "kick" his habit through counselling and treatment. In Hydro-Québec v. Syndicat des employés de techniques profes- sionelles et de bureau d'Hydro- Québec, section locale 2000, it was agreed that she suffered from a personality disorder, but the original tribunal upheld the fir- ing, ruling that accommodating her further would impose undue hardship on the company. The decision was upheld by Quebec Superior Court but overturned by the appeal court, which said the company had not gone far enough in accommodating her. Further, the panel wrote in judgment unanimously, Hydro- Québec didn't consider all the options of accommodation, in- cluding a course of treatment with a graduated return to work. "Certainly employees must always go that extra mile," says Mike Fitzgibbon at Borden Ladner Gervais LLP. "The duty to accommodate requires employers to take seri- ous efforts not only to gather information but to exhaustively review the workplace." The question of what consti- tutes "undue" hardship" is also tricky, he says, since the impact on operations of a small compa- ny of 25 people, is much greater than a large company of 2,500. Larger companies, Fitzgibbon says, have to explore the option of bundling tasks from differ- ent areas commensurate with the skill level of the employee in question, in order to "create" a job for them that they can per- form despite their difficulties. In any event, he says, "the em- ployer must seriously analyze the case to determine whether they've reached the point of undue hard- ship before taking action — also, whether the accommodation is permanent or without limit or a temporary arrangement." ailsa wiggins at Gowling Lafleur Henderson LLP says the question of how far an employer must go to before enduring un- due hardship is a perennial. "It's very good question and one employers ask us all the time," she says. "But every case is really different." One of the biggest hurdles, she says, is attitude. It's often hard to shake management perception that the afflicted employee is "simply working the system. "and in doing so they may misinterpret the symptoms of the disease, particularly when it's a mental illness," she says. LT Employer/employee relations a thorny issue SCC to determine HR obligations FOCUS 11297-08786 MM4 02/08 Wrongful Dismissal Handbook: 4th Edition The Honourable Mr. Justice John R. Sproat This new edition includes new commentary and new case law on such issues as emergency leaves of absence, racial discrimination and what constitutes an effective resignation, plus a detailed table of contents that can be referred to quickly for those who need facts fast. It is the most up-to-date, practical and inexpensive product on wrongful dismissal law available today. ORDER # 9243861-08786 $115 Softcover May 2006 approx. 1000 pages 0-459-24386-1 Evidence and Procedure in Canadian Labour Arbitration Gregory J. 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