Apr 19, 2023
An employer failed in its duty to accommodate and discriminated against a worker it fired while on unpaid medical leave, a British Columbia arbitrator has ruled.
“There was no undue hardship that coalesced that would have made it justifiable for [the employer] to just say, ‘We’re done,’” says Michael Penner, a labour and employment lawyer at Kent Employment Law in Victoria.
“Particularly in a unionized workplace, where you likely have an occupational health committee, there needs to be a protocol in place to protect when a person’s employment status is about to be revoked, to ensure that the decision-maker making that decision is fully apprised of the medical status report.”
Injury in 2017
The worker was an operator for Coast Mountain Bus Company, a provider of contracted bus transit services in the Vancouver area. Hired in 2014, he had a good attendance record until he suffered injuries in a motor vehicle accident in July 2017.
After the accident, the worker was unable to work and went on the short-term disability (STD) plan before transitioning to the long-term disability (LTD) plan. He received LTD benefits until Jan 20, 2020, when the benefits carrier determined that he was no longer eligible.
The worker tried different treatments for his injury but was unable to improve enough to work. When his LTD benefits lapsed, Coast Mountain placed him on and “off-without-benefits” (OWB) program.
An employer met its duty to accommodate by involving the employee in the process, despite the employee’s dissatisfaction, according to the Ontario Human Rights Tribunal.
As was standard practice with OWB employees, Coast Mountain monitored the worker on a regular basis to stay up-to-date on his prognosis for a return to work, as well as whether any accommodation was needed. Every three months, the company provided the worker and his doctor with a questionnaire to indicate any progress towards returning to work.
The medical information from the questionnaires went to Coast Mountain’s occupational health group, which protected confidential health information. Other staff only received what information was necessary to determine the worker’s work status.
The worker underwent multiple treatments to try to manage his pain, but nothing was successful. Some treatments were also delayed because of the COVID-19 pandemic. After each treatment, Coast Mountain requested a report on the worker’s prognosis and possible return-to-work date, to which the worker’s doctor responded, “timeline unknown for sufficient recovery for return to work.”
On Sept. 16, 2020, Coast Mountain informed the worker that his employment might be in jeopardy because there was no expectation that he would return to work in the foreseeable future. The worker was surprised, as he didn’t understand why he might be terminated when he was on unpaid leave. He tried to contact his supervisor, but he wasn’t successful other than exchanging voice messages.
The worker’s doctor indicated in an April 2021 report to Coast Mountain that new therapy had been recommended and the plan was to begin on June 21.
An employer’s duty to accommodate involves both substantive and procedural elements, says an employment lawyer.
Termination of employment
However, before the treatments started, a senior management review determined that no accommodation was possible and there was “no indication of treatment or upcoming tests.” The company terminated the worker’s employment on June 16 because the worker’s return to work was not expected in the foreseeable future and his prognosis was unknown.
The union grieved, arguing that Coast Mountain failed to accommodate the worker’s disability. Coast Mountain argued that there was no prospect of the worker being able to work at the time of termination, and any information about treatment was held by the occupational health group, not those who made the termination decision.
The worker underwent the new treatments and one of them, prolotherapy, was effective and allowed the worker to recover. He was able to work by Nov. 1, 2021.
The arbitrator found that Coast Mountain maintained regular, updated medical information on the worker, including updates each time the worker underwent treatment. The company should have been aware of the upcoming new treatment, which turned out to be beneficial to the worker, said the arbitrator.
The arbitrator noted that the company’s occupational health group was aware of the upcoming treatment from the medical updates, but it was apparent that this wasn’t communicated to those who made the termination decision.
A worker’s failure to support her 14-month medical leave constituted job abandonment, the Ontario Grievance Settlement Board ruled.
The arbitrator also pointed out that the “gaps in information” regarding the worker’s upcoming treatment and status could have been fixed with more communication with the worker, but there wasn’t much before the termination decision. Had the company spoken to the worker before terminating him, it would have known that the new treatment was about to start, said the arbitrator.
“They could have decided to get an independent medical assessment and that assessor can then say, ‘At this time, it’s clear that this guy’s situation is not going to improve,’ – just some corroboration that this is a reasonable point to pull the pin,” says Penner. “What was fatal was the combination of [not seeking an IME] and the fact that they had this program that basically kept the worker on the books at no cost – they had put their minds to this scenario and had created this program where you basically keep this person on unpaid leave pending a resolution of the medical issue or a confirmation that the medical issue would not resolve.”
Coast Mountain had an active process with frequent medical updates and management meetings, but in the end the company didn’t seem to do its due diligence regarding the worker’s medical information, says Penner.
“Procedurally they did a number of things, but what kind of what real effort was behind that?” he says. “It rings as a bit of an excuse where the employer was suggesting that the information was siloed with the occupational health group, who was receiving more of the medical information.”
“But the arbitrator flat-out said, ‘At the time you fired this fellow, you had medical information in hand that confirmed he had a new therapeutic approach pending’ – there was no evidence whatsoever that [the worker] was dragging his feet or wasn’t complying with the requests that were being made of him,” Penner adds.
A worker who was fired while on medical leave was wrongfully dismissed, an Alberta court ruled.
Not end of the line
The arbitrator determined that Coast Mountain did not have sufficient evidence to conclude that there was no prospect of the worker returning to work and it failed to consider the upcoming treatment and the delays caused by the pandemic. This was all related to the worker’s disability, which activated the duty to accommodate, said the arbitrator.
The arbitrator agreed that that Coast Mountain couldn’t accommodate the worker with a position because he was totally disabled but found there was no proof that keeping the worker on OWB status until the new treatment was attempted would be undue hardship.
“If [the worker] was still on the payroll or exhausting corporate resources and there was no end in sight, things might be different – economic considerations typically aren’t going to get you to undue hardship but it’s at least a factor to consider,” says Penner. “But given the low demands on the employer that this employee was presenting and the prospect of a new line of therapeutic treatment, the arbitrator was clear that he didn’t find anything nefarious but the worker shouldn’t have been fired,” says Penner.
The arbitrator ruled that the worker was terminated without just cause and Coast Mountain did not meet its duty to accommodate. Coast Mountain was ordered to reinstate him to his operator position effective Nov. 1, the date he was able to work again. It was left to the union and the company to determine any other compensation.
Penner notes that the arbitrator considered the post-termination evidence of the worker’s successful treatment, despite the fact that normally it wouldn’t be a factor.
“The arbitrator justified introducing the post-termination evidence because the employer knew that there was a medical procedure that was still outstanding,” says Penner. “The arbitrator was able to link those events to assess undue hardship – the fact that the worker received the treatment and recovered was contextual.”
See Coast Mountain Bus Co. and Unifor, Local 111 (Purewal), Re, 2023 CarswellBC 894.