A B.C. municipality will get another chance to make its case for terminating three employees on long-term disability with no hope of coming back to work following a new ruling from the province’s labour relations board that deals with the tricky question of non-culpable absenteeism.

Earlier this month, board vice-chair Elena Miller issued a ruling on a challenge by the employer, the Township of Langley, of an earlier arbitration decision in favour of three dismissed employees. A key issue in the case was the employer’s right to terminate the employees in order to end its obligation to pay health, dental and life insurance benefits given that they had no hope of coming back to work. The termination would have no effect on their long-term disability payments.

While the municipality had 12 employees on long-term disability who had been off work for significant periods of time when it looked into the issue in 2013, it terminated just three of them: essentially those who had been off work the longest. The union, the Canadian Union of Public Employees Local 403, grieved the terminations.

Read: ‘Welcome news’ in B.C. court statement on non-culpable absenteeism

In 2015, arbitrator David McPhillips ruled in the union’s favour, finding the manner of the terminations was “arbitrary,” “random” and, therefore, discriminatory. Among the concerns cited by the arbitrator were the different lengths of time the workers had been absent and the disparate treatment that resulted. McPhillips also cited the lack of a particular rule or policy to deal with the issue and noted the employer’s motivation to save money on its benefits costs.

In ruling on the township’s challenge of the arbitration award this month, Miller referred to cases where arbitrators found employers to have acted in bad faith because they terminated employees with disabilities for non-culpable absence in order to avoid paying severance to them. Severance recognizes past service, she wrote, citing cases that have distinguished that issue from the ongoing nature of non-disability related employment benefits. “The right to receive such benefits depends not on past service but on an employee’s present ability (or reasonably foreseeable future ability) to fulfil the essential employment relationship bargain of work for pay,” she wrote.

“None of the three grievors could fulfil that bargain.”

Read: Arbitrator highlights role of disability management process in ruling in worker’s favour

While McPhillips had ordered the employees’ reinstatement, Miller set aside the decision and ordered him to reconsider the case in light of her ruling. “The arbitrator may then come to the same or a different decision on the outcome of the grievances,” she wrote.

Copyright © 2020 Transcontinental Media G.P. Originally published on benefitscanada.com

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