Canadian Employment Law Today

October 24, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases indicated MacInnis was able to return to work with her full duties and hours on Oct. 24, 2016. e decision also stated that "the evidence supports a finding that there is no medical reason that the worker is unable to return to work." While MacInnis had been away from work, the town's staff had undergone some realignment that led to certain reassign- ments. is continued after MacInnis re- turned to work and on Nov. 3, 2017, the CAO informed her that due to restructuring she would be required to perform full-time du- ties. ese duties would include transcribing audio recordings of the town council's meet- ings, as well as meetings by other commit- tees — a job MacInnis had done before she had gone off work. However, MacInnis said she was experi- encing tingling and numbness in her fingers and hands and she couldn't do transcription work because it would be painful for her. e CAO replied that there was no medi- cal documentation to support her conten- tion that she couldn't perform transcription work, which was a normal part of her posi- tion's duties. Two days later, MacInnis emailed the CAO to say she wasn't feeling well and wouldn't be at work the next day. e next day, she provided a certificate from her fam- ily doctor stating that she would be unable to work from Nov. 6 to 19 "due to medical reasons" and her expected return-to-work date was Nov. 20. ree days before the expected return to work date — Nov. 17 — MacInnis provided a second certificate from her doctor advising she would be absent for a further two weeks and her expected return-to-work date was now Dec. 1. On Dec. 1, MacInnis failed to report to work and instead provided a third doctor's certificate for absences from Dec. 1 to 17, with a return-to-work date of Dec. 18. A few days after receiving the third certifi- cate, the town's CAO requested information from MacInnis' doctor regarding her ability to perform her duties including transcrip- tion and, if she was restricted, how long the restriction would last. He also requested advice on helping MacInnis fulfill her duties through modified work and if a referral to a specialist was necessary. MacInnis responded to the request with another certificate from her doctor. e cer- tificate was nearly identical to the previous ones, except that the dates had changed and her expected return to work was Jan. 3, 2018. e CAO emailed MacInnis reminding her that she had an obligation to co-operate and if she didn't provide the requested informa- tion immediately, the town would consider her to be refusing to work. MacInnis told the CAO that her doctor had returned the uncompleted information package to her and said the workers' com- pensation board had the necessary infor- mation. e CAO suggested she seek legal advice and said the town would consider her to have abandoned her position if she failed to provide the medical information. MacIn- nis responded with a fifth medical certificate indicating a return-to-work date of Jan. 9. e CAO sent one more warning to Ma- cInnis about providing the medical informa- tion to support her absence from work, and MacInnis responded by providing a sixth medical certificate from her doctor — again, identical to the others, except for different dates covering Jan. 8 to May 4 and a return- to-work date marked as "unknown." MacInnis' doctor didn't provide the town with the requested information on her abil- ity to perform her duties or her restrictions and MacInnis didn't return to work, so the town terminated her employment for "ex- cessive unexcused absence and from your insubordination in refusing to fulfill your duty to co-operate by providing informa- tion to explain your absence and your re- fusal to perform assigned tasks," effective Jan. 29, 2018. MacInnis filed a labour standards com- plaint for unjust dismissal. e board found that MacInnis didn't report to work after Nov. 3, 2017, and only provided medical certificates that were of "limited value," but the fact she continued to provide the certificates "on an ongoing and timely basis" and was in frequent contact with the CAO about her absence indicated she didn't intend to abandon her position and planned to return at some point — in fact, she "sought strenuously to keep her po- sition," said the board. However, the 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." e medical certificates MacInnis provided had enough information to support absences for a short-term illness, but for an absence as long as MacInnis' — more than six months, with no expected returned date on her last medical certificate — the town was entitled to request additional information. While her complete medical history wasn't necessary, it was reasonable for the town to seek information on her ability to perform her job duties and her restrictions, said the board. e board noted that MacInnis' doctor probably didn't provide additional informa- tion because MacInnis didn't agree to the release of her medical information. How- ever, she should have consented to provide at least some of the information the town requested, but instead she "made a wilful decision not to authorize her physician to answer the town's questions," despite warn- ings from the CAO that the town would consider her to have abandoned her job if she didn't. As a result, the board found that while MacInnis didn't abandon her position, the town had just cause to terminate her em- ployment due to a failure to provide re- quested medical information supporting her long-term absence. For more information see: • Westville (Town), and MacInnis, Re, 2018 CarswellNS 697 (N.S. Lab. Bd.). Medical certificates were identical with dates changed « from NO JOB ABANDONMENT on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? 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