Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today anad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Co-op worker not co-operative with medical information THIS INSTALMENT of You Make the Call involves a worker who was fi red for not pro- viding updated medical information to sup- port a continuing absence. e 54-year-old worker was a grocery supervisor with Calgary Co-operative As- sociation, a chain of food stores and fuel sta- tions in the Calgary area. He joined Calgary Co-op in 1981 and had no formal discipline in his fi le. In July 2009 the worker hurt his ankle while on vacation. He provided a medical note saying he was to be off work for two weeks with no modifi ed duties. He returned to work on Aug. 5. When the HR depart- ment followed up, it found there was no medical note indicating the worker was fi t to return to work. He was sent home until he provided such a note. On Aug. 11, the worker provided a medi- cal note that said he was to be off work for 8 to 12 weeks with no modifi ed duties. Calgary Co-op sent a questionnaire to the worker's doctor seeking clarifi cation of his medical restrictions and expected return to work. A week later, the doctor sent back the questionnaire, which to the company's sur- prise stated his absence was related to de- pression and work stress, not his foot injury, and the 8- to 12-week timeline was "depend- ing on progress." On Oct. 15, the worker provided another medical note indicating he needed a fur- ther four weeks off . e following week, the union received an independent medical as- sessment that diagnosed the worker with "adjustment disorder, with mixed anxiety and depressed mood." However, the assess- ment was not sent to Calgary Co-op. In November, Calgary Co-op contacted the worker to fi nd out when he would be re- turning to work. e worker responded by requesting a buy-out package since he didn't want to come back to work. Calgary Co-op declined and the worker said he needed to decide if he wanted to return at all. Calgary Co-op sent the worker a letter saying he would have to provide medical documentation once his existing medical note expired on Dec. 9 or face dismissal. Af- ter no response, Calgary Co-op terminated his employment on Dec. 16, 2009. e union fi led a grievance, claiming the worker was unjustly dismissed and wasn't provided with an opportunity to meet with management to explain his circumstances and why he didn't provide updated medi- cal information, as required in the collec- tive agreement. e collective agreement had a provision that stated an investigative meeting with the employee and a union rep- resentative shall be held prior to discipline being undertaken by the employer. On Jan. 5, 2010, it provided a medical note from the worker's doctor stating the worker was "ad- vised to quit due to medical reasons." IF YOU SAID the dismissal was valid, you're right. e arbitrator agreed with the union that Calgary Co-op violated the collective agreement when it failed to call an investi- gative meeting before making the decision to terminate the worker's employment. However, the breach did not signifi cantly change the outcome, said the arbitrator. e arbitrator found there were several conversations that took place between the company and the union regarding the com- pany's request for updated medical infor- mation in November and December 2009. e company also was in contact with the employee and sent a letter advising him that failure to provide the information would re- sult in his dismissal. e arbitrator also found that the key is- sue was what harm the worker suff ered due to Calgary Co-op's breach of the collective agreement. Had an investigative meeting been held, the only thing that could have made a diff erence was the production of new medical information. Since the union and the worker had withheld new informa- tion up to and after the dismissal, it was un- likely that would have changed in the meet- ing, said the arbitrator. "A more likely scenario is that the union and the (worker) would have reiterated their interest in a buyout, a course of action al- ready fi rmly rejected by the employer," said the arbitrator. "In short, inferences drawn from the evidence lead to the conclusion that calling an investigative meeting would not have altered the course of events." e arbitrator determined that missing an investigative meeting was an oversight — the evidence further indicated the company mistakenly thought it wasn't necessary for an employee absent without leave — that didn't change the decision to terminate. e only harm the worker received was the loss of opportunity — "however slim," said the arbitrator — to avoid discipline in an in- vestigative meeting. e arbitrator ordered Calgary Co-op to pay the worker $2,500 in damages for breach of his collective agree- ment right to a meeting but upheld the dis- missal. For more information see: • Calgary Co-operative Assn. and UCCE (F. (C.)), Re, 2013 CarswellAlta 418 (Alta. Arb.). YOU MAKE THE CALL Was the employee unjustly dismissed without an investigative meeting? OR Was the dismissal still valid?

• Cover