Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends/Ask an Expert WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as handling risky terminations, drugs and alcohol in the workplace, employee off-duty conduct, and workplace investigations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. medical disability, which was required by the benefits plan. Rose informed AHS she would appeal the decision, but AHS indicated there was no medical evidence to support her ab- sence so she was expected to return to work. When asked if she was planning on return- ing March 1, Rose responded that she was unsure. AHS placed her on an unpaid leave of absence. AHS didn't hear from Rose after that, so on March 11 the AHS abilities advisor left her a message about providing updated medical information. Rose confirmed she had been told in her appeal that she needed to provide more medical information to the benefits provider to provide "a clear understanding of what was restricting (her) from perform- ing the duties of (her) own occupation." On March 12, Rose provided a medical note to both AHS and the benefits provider stating she was suffering from "a significant episode of depression" caused by "financial and familial stress and workplace stress." e note indicated it might take two or three months for recovery. Rose had also began counselling through the AHS employee as- sistance program (EAP) and, after AHS fol- lowed up, Rose provided another medical note saying "consultation remains pending. Unfit for work until 1 May." Rose's appeal for benefits was denied by the provider due to insufficient medical evidence. e next day, March 26, she told the abilities advisor that she had given new medical information to the benefits provider and she expected to return to work on May 1. Rose was told to provide the medical in- formation supporting her absence by 4 p.m. that day or she would be deemed to have abandoned her position, leading to termina- tion of employment. e benefits provider reviewed the ad- ditional medical information and approved short-term disability benefits on April 2, with the expectation of a return to work on May 1. is information was passed on to AHS, who changed Rose's status from an un- paid leave of absence to short-term disability leave. AHS heard nothing from Rose for the rest of April and she didn't show up for her sched- uled shifts on May 3 and 4. is created dif- ficulties for the unit, which had tight staffing and resources available. AHS sent a letter to her saying she needed to return to work or provide medical information supporting an extension of her medical leave. In addition, Rose was told if she didn't contact AHS be- fore May 7, she would be considered absent without leave and her employment would be terminated. Under the collective agreement, if an employee missed three consecutive shifts without supporting medical evidence or notification, she could be terminated. On May 6, AHS received two medical notes from Rose dated May 1 stating that she was still unfit for work but would likely be able to return on June 1. It also stated "work placement be found at a hospital or AHS fa- cility closer to her residence." AHS didn't accept the medical notes as sufficient to support Rose's continued ab- sence or transfer to another location. Rose was advised on May 13 that she had missed five shifts and if she didn't return to work or provide supporting medical information, she would be terminated. Rose didn't show up at work over the next couple of days and AHS terminated her em- ployment on May 16. Rose filed grievances claiming a failure to accommodate and wrongful dismissal. On June 19, she provid- ed a medical note stating she was fit to return to work with no restrictions as of June 1. e arbitration panel found AHS main- tained sufficient contact with Rose through- out the process and Rose was well aware of what was required of her. Given she didn't contact AHS for a month leading up to her initial expected return date and AHS didn't have information supporting her inability to return, AHS was entitled to conclude Rose wasn't absent for "good and proper reasons," said the panel. e panel also found AHS had reason to be suspicious, as Rose went on medical leave right after a poor evaluation meeting and part of the reasons given for her condi- tion was work stress. In addition, Rose made no effort to determine what was a sufficient note and usually provided very short ones with little real information, and was difficult for AHS to contact during business hours. "e panel therefore concludes that the mere existence of the medical notes in this case is insufficient to establish that (Rose) had good and proper reason to be away from work," said the panel. "Further (she) could have been under no misapprehension when she failed to attend her shifts on May 13, 14, and 15, 2014 that those notes were sufficient proof of her inability to attend work." e panel upheld the dismissal, finding AHS had the right to dismiss Rose under the collective agreement. It also found Rose didn't provide sufficient medical evidence to show she had a disability requiring accom- modation. See Alberta Health Services and AUPE, Re, 2016 CarswellAlta 243 (Alta. Arb.). Worker went on leave right after poor evaluation « from BRIEF on page 1 Medical notes were insufficient to support continuing absence Changing timelines « from ASK AN EXPERT on page 2 particular time." e court also noted that several previous delivery dates had passed without any com- plaint from Hydro One. While contracting parties should be wary any time they do not comply with the terms of the agreement, a missed deadline may not automatically result in a breach of contract in every circumstance. ose looking to en- force a strict timeline should be cautious in their dealings with the defaulting party, as a court may find that their conduct implied that the agreed-upon deadline could be waived or extended. For more information see: • Farber c. Royal Trust Co, 1996 CarswellQue 1158 (S.C.C.). • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). • Marshall v. Newman, Oliver & McCarten Insurance Brokers Ltd., 2004 CarswellOnt 160 (Ont. C.A.). • Brown v. Pronghorn Controls Ltd., 2011 CarswellAlta 1933 (Alta. C.A.). • Endacom 2000 Inc. v. Hydro One Networks Inc, 2002 CarswellOnt 57 (Ont. S.C.J.). Brian Johnston, Q.C., is a partner with Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewart- mckelvey.com.

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