Canadian Employment Law Today

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Read the facts and see if the judge agrees YOU MAKE THE CALL 8 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 Accommodation request for shorter commute THIS INSTALMENT of You Make the Call features an employee who requested accommodation by being allowed to work from home every day. Joseph Yue worked for the Bank of Mon- treal (BMO) as a project manager at its head- quarters at First Canadian Place in Toronto for more than 30 years. In 1992, Yue moved to Barrie, Ont., about 100 km north of To- ronto, and commuted to Toronto every day, taking about two hours each way. His entire team was located at First Canadian Place. In 2002, BMO had telecommuting ar- rangements that allowed some employees to work at a location other than the main offi ce, but these were discontinued in 2004. In the fall of 2011 and the spring of 2012, Yue worked on a project that allowed him to work out of BMO's computer complex in Barrie twice a week, with him commut- ing to Toronto the other three workdays each week. Yue confi rmed with BMO that this arrangement would continue for the duration of the project, which would end in May 2012. Occasionally, Yue's supervisor al- lowed him to work extra days in Barrie. Yue had some disappointment over vari- ous issues including salary upgrades, work- load, and reporting requirements. He in- formed his supervisor that sometimes he didn't feel well because of hives, allergies, and high blood pressure. On Feb. 29, 2012, Yue provided BMO with a note from his doctor that stated he had an illness that was aggravated by inad- equate rest and travelling between Barrie and Toronto. e note further said that "it is advisable for him to work in Barrie fi ve days a week." Yue also informed his supervisor that he had been "ordered to stay in (Bar- rie) for an entire month to see if my health would improve, if not, I will be applying for short-term disability (STD) to help me re- cover." BMO told Yue its policy required Yue's doctor to complete a form and send it to its accommodation and benefi ts provider be- fore it would consider his request. Yue was allowed to work in Barrie for 10 business days until the benefi ts provider received the form and made a recommendation. Yue's doctor sent the form, saying Yue suf- fered from hypertension and exzema and "it's too stressful for him to travel between Barrie and Toronto. He can't get enough rest. Stress aggravates both his hypertension and exzema." e doctor concluded that Yue should avoid travelling long distances, such as that between Barrie and Toronto." Yue was in a motor vehicle accident on March 7 with minor injuries. He was back at work in Barrie two days later. e benefi ts provider denied the request for accommodation on March 23, saying the medical documentation didn't support his claim. ree days later, Yue's doctor sub- mitted a statement saying Yue had suff ered whiplash and injuries to his back, wrist and knee in the accident and commuting to To- ronto would aggravate these injuries along with the hypertension and eczema. e benefi ts provider rejected the second claim as well, suggesting an ergonomic as- sessment be conducted and a gradual reinte- gration for Yue, starting with two days in To- ronto, the fi rst week, three days the second week, and so on until he was back full-time. Yue refused the transition plan, saying he would be starting STD on April 2. He applied for STD with the same information he had already submitted, but this claim was also denied by the benefi ts provider. BMO informed Yue his leave was now un- authorized and he had a choice of appealing the claim rejections, applying for another type of leave, or returning to work. Yue didn't take any of those choices and in- stead fi led a complaint that BMO construc- tively dismissed him by failing to accommo- date his request to work full-time in Barrie. YOU MAKE THE CALL Did BMO have the right to deny Yue's request? OR Did BMO constructively dismiss Yue when his request was denied? IF YOU SAID BMO could deny the re- quest, you're right. e adjudicator agreed with BMO that the medical documentation Yue provided was insuffi cient to support the accommodation he requested. e ad- judicator pointed out that the initial doc- tor's note indicated it was advisable for Yue to work in Barrie fi ve times a week, but not a medical necessity. ere were no travel or movement restrictions specifi ed, other than simply that he couldn't commute to and from Toronto, and there was no link es- tablished between Yue's conditions and an inability to travel for long periods, said the adjudicator. "If Mr. Yue's eczema (and the record here showed 'slight improvement' in any event) and hypertension (and there was agreement that stress can increase one's blood pres- sure) medically required that he travel less or work shorter days or get more sleep, then I would have expected general restrictions on Mr. Yue's work days aimed at a reduc- tion of stress, rather than the very specifi c request which was made," said the arbitra- tor. " e fact that the 'advisable' accom- modation requested by (Yue's doctor) only related to not commuting between Barrie and Toronto made the entire request for ac- commodation questionable." e adjudicator found the denial of Yue's accommodation request and STD claim was reasonable and his placement on unau- thorized leave until he made a choice was not a repudication of the employment con- tract. As a result, there was no constructive dismissal. See Yue and Bank of Montreal, Re, 2014 CarswellNat 5875 (Can. Labour Code Adj.).

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