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Employee Doesn’t Co-operate = Termination

By November 26, 2018November 28th, 2019Employment Law

Time and time and time again, we tell dentists: you must accommodate your employees’ disabilities… but it’s a two-way street!

We have yet another example of some repeated and sustained non-cooperation from an employee that earned that employee a justified termination of employment.

Disability Occurs

In the case of Westville (Town), and MacInnis, Re, 2018 NSLB 127 (CanLII) (N.S. Lab. Bd.), the Nova Scotia Labour Board found that while a worker didn’t abandon her job (when she failed to provide medical information supporting her long-term absence), her employer had just cause to terminate her employment because of that non-cooperation.

The employee, named Nancy MacInnis, was hired to work as an accounts payable clerk for the Town of Westville, Nova Scotia in April 2009.  She worked without any problems for over six years until the end of 2015 when she had to take time off work due to an injury suffered at work (related to a pre-existing condition in fact).

When she was ready to return to work, the employee began an ease-back program where she gradually returned to work after being off for about 10 months.  By the spring of 2017, she was back to working full-time hours but not actually performing all of her regular full-time duties.

New Conflicting Information Found

In April 2017, an executive of the employer (the town’s chief administrative officer) discovered a workers’ compensation decision in which the same employee had successfully appealed for WSIB benefits from the period of her injury to the start of her ease-back program. The decision contained specific medical information that had not been previously available to the employer (specifically that an expert report had indicated the employee was able to return to work with her full duties and hours at the time she returned at work, and that “the evidence supports a finding that there is no medical reason that the worker is unable to return to work”).

So let’s recap: the employee told her employer one thing, but submitted evidence to WSIB that was something opposite.

Employer Wants To Revert to Previous Duties

Well, while the employee was away from work, the employer had restructured the business and it led to certain reassignments. This continued after the employee returned to work.  In late 2017, the town’s chief admin officer (same person from above) told the employee that due to restructuring, she would be required to perform all of her regular full-time duties (including transcribing audio recordings) that she had done before she went on leave.

The employee said she couldn’t do the transcription because it would be painful for her and she was experiencing tingling and numbness in her fingers and hands.  In reply, the employer reminded the employee that there was no medical documentation to support that.

Employee Immediately Becomes Ill

Two days later, the employee emailed the employer and said she wasn’t feeling well and wouldn’t be at work the next day. The next day, she provided a doctor’s note from her family doctor stating that she would be unable to work for 3 weeks “due to medical reasons.”

Three days before the expected return to work date, the employee gave a second doctor’s note saying she would be absent for an additional two weeks.

At the end of those two weeks, the employee gave a third doctor’s note saying she would be absent for about 3 more weeks.

A few days after receiving this third doctor’s note, the employer rightfully requested information from the family doctor about the employee’s ability to perform her duties and the prognosis in the future.  There was also a request from the employer for advice on how to help the employee complete her job duties with accommodation.

In response, the employee gave a fourth doctor’s note (!!!!), nearly identical to the previous notes, but with the dates changed to extend the absence to a month in the future (for a total of about 2 months).

Employer Stresses Co-Operation, Employee Consistently Refuses

The employer e-mailed the employee and reminded her that the employee has an obligation to co-operate and if she didn’t provide the requested information immediately, the employer would consider her to be refusing to work.

The employee argued back saying that her doctor had returned the necessary information back to the employer (the fourth doctor’s note) and that the worker’s comp board had all the rest of the relevant information (which wasn’t in the hands of the employer).

The employer told the employee to seek independent legal advice and said the employer would consider her to have abandoned her position if she failed to provide the medical information.

In response (believe it or not), the employee gave a fifth doctor’s note (!!!!!) stating the return to work would be an additional week after the fourth doctor’s note.

The employer sent one more warning to the employee about cooperation, and the employee gave a sixth doctor’s note (!!!!!!) which appeared to be identical to the others, but this time the absence dates were for the next 4 months and the return-to-work date marked as “unknown.”

Employee is Terminated, Legal Fight Starts, Employer Wins

Since the employee or her doctor did not provide the reasonable information to the employer and the employee did not return to work, the employer terminated the  employment for cause, for the reason of “excessive unexcused absence and from your insubordination in refusing to fulfill your duty to co-operate by providing information to explain your absence and your refusal to perform assigned tasks,” effective about 3 weeks after the letter was sent.

The employee then filed a labour standards complaint for unjust dismissal in the province of Nova Scotia.

The Nova Scotia Labour Board decided that the employee didn’t report to work after Nov. 3, 2017, and only provided medical certificates that were of “limited value.” The Board also decided that the employee did not actually abandon her position, since the evidence showed that the employee continued to provide further doctor’s notes “on an ongoing and timely basis,” and she was in frequent contact with the employer about her absence and planned to return at some point (the Board actually said that the employee “sought strenuously to keep her position” during that time.)

But, in siding with the employer, the Labour Board found that an employee who claims that an illness is preventing her from working “has a responsibility to satisfy the employer that the illness is bona fide — that is, a true illness.” The medical certificates the employee provided had enough information to support absences for a short-term illness, but not for a long term illness of over 6 months with no expected return date.  For that reason, the employer was justified to request additional information on the employee’s ability to perform her job duties and her restrictions.

The employee’s doctor and the employee never submitted additional information to the employer specifically because the employee did not agree to release her medical information to the employer.  This is where the employee was in the wrong, said the board. Instead of providing at least some of the information the employer reasonably requested, the employee instead “made a wilful decision not to authorize her physician to answer the town’s questions” despite being warned by the employer that her co-operation was necessary.

The Board decided that the employer had just cause to terminate the employment due to the employee’s failure to provide the requested medical information supporting the long-term absence.

Conclusion

While this case was decided in the province of Nova Scotia, its effects can apply here in Ontario.  This was a case where the employee consistently refused to co-operate in the accommodation process.  The employer showed a willingness to accommodate and commenced the accommodation process.  At an appropriate time, it requested additional information about the employee’s limitations and prognosis relating to the disability.  It didn’t get satisfactory information so it asked again.  When it still didn’t get the right information (after waiting a bit of time), it warned the employee that she was required to co-operate.  The employer waited and warned some more – and the employee refused to co-operate and provide reasonable evidence for the taking of the leave of absence or any information on how she could be accommodated.

After you request, wait, request, wait, warn, wait, and warn again, that is just about the limit of how flexible an employer needs to be.  Accommodation is a two-way street, but this employee thought it was a one-way “my-way-highway”.  She was simply wrong.

The employer did not “rub it in” the employee’s face that it had the additional WSIB report; instead, it requested its own information from the employee.  Likely, if push came to shove, it would have brought the discrepancy to the attention of the employee (and her doctors) and asked for clarification on it.  The employer seemed to be reasonable and it was vindicated in any event.

Let this be a lesson to employers: be flexible, but ensure you get co-operation in the accommodation process!

DMC