Canadian Employment Law Today

Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, 2019 IBM's third-party insurance provider re- quested medical information — via short questionnaires — to support Nagpal's ab- sence for the purposes of short-term disabil- ity (STD) benefits. Nagpal provided a ques- tionnaire from his psychiatrist indicating he was being treated for depression and anxiety and, in late June, the insurance provider in- formed him of the process to apply for long- term disability (LTD) benefits. By this point, Nagpal had been on STD leave for 16 weeks. No return-to-work estimate In early July, Nagpal provided another ques- tionnaire from his psychologist with no estimate on when it would improve. e psychologist also said that "return to work is premature" and trying to come back too soon would "likely exacerbate symptoms and stall recovery." e insurance provider determined that the medical information didn't support a conclusion that Nagpal's condition was se- rious enough that he couldn't work while receiving treatment. e provider informed Nagpal on July 19 that his STD benefits were being terminated, though he could appeal the decision if he had new or additional medical information. Nagpal's supervisor told Nagpal that he could either return to work or appeal the STD benefits decision, but if he chose the latter he would be on unpaid leave. He also told Nagpal that he had until Aug. 22 to pro- vide documentation to support his appeal . If he didn't, he would have to return to work or IBM would consider him to have resigned. Nagpal's doctors told him they couldn't of- fer anything else to the insurance provider. Nagpal sought legal counsel, who contacted IBM to say that Nagpal couldn't return to work for medical reasons and, if IBM proceeded in- dicated, it would be wrongful dismissal. IBM didn't respond and Nagpal's STD benefits were terminated on July 30. One month later, Nagpal confirmed that he wouldn't be appealing the decision. IBM wrote to Nagpal on Sept. 10 with three options: attend a meeting to discuss his barriers to returning, discuss any workplace concerns with his supervisor or HR directly, or contact the employee assistance program about counselling and health coaching ser- vices. If he didn't take any of these options by Sept. 27, IBM would consider Nagpal to have resigned from his employment. Worker rejected options from employer Nagpal's legal counsel responded by saying none of the options was satisfactory and Nagpal's health-care providers had indicated he wasn't capable of returning to work. He also said Nagpal's mental health had wors- ened because of IBM's decision to cut off his salary and benefits and "the only satisfactory resolution" would be to either reinstate Nag- pal's disability benefits or pay him his salary until he was able to return. IBM didn't respond until Oct. 9, when the company informed Nagpal that it con- sidered him to have abandoned his employ- ment. Nagpal sued for wrongful dismissal. IBM countered that Nagpal abandoned his employment or, in the alternative, the em- ployment contract was frustrated by Nag- pal's illness and absence. e court stipulated that, for an employ- ee's resignation to be valid, it must be clear and unequivocal. ough IBM argued that Nagpal's actions spoke louder than his words when he failed to provide additional medical information and didn't respond to the op- tions the company gave him, the court found that all along Nagpal made it clear that he had no intention of resigning or abandon- ing his employment. Nagpal's communica- tions through his legal counsel stated that he wasn't able to return to work until his men- tal health improved and if IBM terminated the employment relationship it would be wrongful dismissal. However, IBM didn't respond to the com- munications and proceeded with its own plan. is was a failure to live up to the com- pany's responsibility to engage with Nagpal on his medical status and return-to-work plan. Nagpal didn't appeal the decision to terminate his STD benefits, but this was because he was in a vulnerable position and wasn't clear on what medical information was needed, said the court. "IBM should have done more when Mr. Nagpal clearly expressed an intention to re- turn to work when he was able to do so and said he could not do so because of his con- tinuing illness, on the advice of his doctors," the court said. e court noted that Nagpal's legal coun- sel should have better identified the gap in medical information or what was necessary for an appeal, but this didn't mean Nagpal re- signed or abandoned his employment. e court determined that Nagpal's ac- tions, when viewed objectively by a reason- able person, clearly indicated that he wanted to remain employed by IBM. As for IBM's alternative argument that the employment contract was frustrated, the court found this position wanting as well. "Illness on its own is not a frustrating event, and one must have regard for the length of the illness in relation to the dura- tion of the employment contract," the court said, noting that Nagpal had 23 years of ser- vice with IBM and had been off for seven months with his mental health issues. ere was clear indication from Nagpal that he intended to return to work. IBM had limited medical evidence and didn't make further inquiries into Nagpal's condition, and the company had the ability to tolerate long-term absences — as evidenced by the fact it is a large company that offers LTD benefits, said the court. e court found IBM wrongfully dis- missed Nagpal and deferred determining the damages until a later date. See Nagpal v. IBM Canada Ltd., 2019 ONSC 4547 (Ont. S.C.J.). « from ONTARIO WORKER on page 1 Employee made it clear he had no intention of resigning the employee returned to the office and tried to continue her employment. However, the employer refused to allow her to do so and took the position that she had resigned. e Ontario Superior Court of Justice found that, in the context of the whole situa- tion, it was not reasonable for the employer to think the employee had resigned, given that she had been with the employer for 27 years, had no other job lined up, had never previ- ously talked about resigning, had not pro- vided any oral or written notice of resignation and had not said goodbye to colleagues. e court stated that while the employer did not owe a paternalistic duty to the employee, it did have an obligation on the particular facts of the case to do more to determine her true and unequivocal intention. e court com- mented: "… the circumstances here cried out for further inquiry by the defendant." When an employee states orally that she is quitting, it is best practice for the employer to ask the employee to confirm in writing that she is resigning and to specify the date when she will be leaving. If the employee leaves sud- denly and/or appears to be in an emotional state, the employer should follow up prompt- ly after the fact (as in the next working day) and make inquiries to confirm whether the employee actually intended to resign. If the employee says she intended to quit but will not put the decision in writing, the employer should write to the employee and confirm the resignation and its acceptance. For more information see: • Johal v. Simmons da Silva LLP, 2016 ONSC 7835 (Ont. S.C.J.). Colin G.M. Gibson is a partner with Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. « from ASK AN EXPERT on page 2 Confirm employee's resignation in writing

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