Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2016 More Cases worker and a representative from his union. e worker denied any inappropriate con- duct with the building services manager. He agreed he approached the manager to complain about the test because he felt the questions weren't related to the job require- ments and some of his answers were marked wrong when they were correct. He claimed he spoke to the building services manager in a "calm and rational way" but it was the man- ager who became aggressive, saying he had been in the military and asking him "who are you to question me?" As for the gun, the worker said it was an "airsoft" gun he had purchased during his lunch break and he decided to open it and look at it while waiting for his wife — who was also an employee at the centre. He said he didn't think anything of it at the time but acknowledged that it wasn't a good idea and he wouldn't bring such a gun to work again. He initially said no-one had seen him with the gun but then changed his story when the co-worker's report came to light. e centre determined the two incidents showed "a gross lack of judgment" and a vio- lation of its workplace harassment and vio- lence policy. Given his disciplinary record and his "limited acknowledgement of the se- verity of your actions," the centre terminated the worker's employment. e union grieved the termination, argu- ing that the centre didn't have just cause as required under the collective agreement. It claimed the worker's conduct couldn't rea- sonably have been seen as a threat of physical violence to the building services manager, the HR manager, or any other employee. It also argued the gun incident was a "red herring" in the case being built for his dismissal, as the worker was simply looking at a fake gun in his car and happened to be spotted by someone. e arbitrator accepted that the worker was angry about the test for the posted po- sition and let his anger get out of control, confronting both the HR manager who was administering the test and afterwards the building services manager. e arbitrator found there was no implication of physical violence in the office confrontation and it wasn't likely the building services manager felt he was about to be physically attacked. However, when he confronted the HR man- ager, the worker said he would regret his ac- tions, which could be considered a "veiled threat," said the arbitrator. e arbitrator also found that the worker had significant previous discipline and the worker had "a continuing pattern" of refus- ing to accept management authority. e worker's "unwillingness to accept responsi- bility for his actions or to accept the authority of the employer to exercise its management rights in the operation of its business," his disciplinary record, and his veiled threat to the HR manager — characterized as serious in light of Ontario's Bill 168 that placed spe- cific duties on employers to protect against workplace violence — provided the Trillium Centre with just cause for dismissal under the collective agreement. See Specialty Care Tril- lium Centre and SEIU, Local 1 (Tucker), Re, 2016 Carswell Ont 6616 (Ont. Arb.). « from ANGRY on page 1 Employee abandoned position by not providing required medical information about inability to work EMPLOYEES who have legitimate medi- cal issues can abandon their employment if they don't follow proper procedures regard- ing medical leave and disability benefits, the Ontario Divisional Court has ruled. Anthony Betts was hired as a learning specialist for IBM in Nova Scotia and later moved to the company's New Brunswick location to serve as a system service rep- resentative. Betts suffered from an anxiety disorder and in 2008, he had a depressive episode. is resulted in him taking a leave of absence from September 2008 to January 2009. While he was off work, he received benefits under IBM's short-term disability (STD) plan. On October 2013, Betts' father died and he suffered another depressive episode soon after. He became unable to work and applied for STD again on Oct. 21. While off work, Betts moved to Mississau- ga, Ont., to live with his fiancée and undergo psychotherapy. In December 2013, IBM sent an "absence option letter" to Betts telling him if he didn't return to work or submit medical documentation supporting his absence by a certain date, it would consider him to have voluntarily resigned from his position. IBM sent four more such letters over the next few months, each with a later deadline. Betts responded to each letter with letters and emails from his psychotherapist recom- mending that he should not return to work because of his depression and anxiety. How- ever, he didn't include any documentation from a medical doctor. On Jan. 16, 2014, IBM's STD benefits provider, Manulife, rejected his STD appli- cation. Betts appealed the decision but was rejected again on Feb. 26. IBM sent a fifth and final absence option letter to Betts on May 14, asking him to pro- vide more medical documentation to make a second appeal for STD benefits, or else he would have to return to work by June 30. Bet- ts notified IBM on June 20 that he wouldn't return to work because of his psychothera- pist's recommendations. Based on Betts' response, IBM deter- mined that Betts resigned from his position effective June 30, 2014. Betts filed a claim for wrongful dismissal and a motions judge dis- missed the claim, finding Betts had "aban- doned or resigned from his employment." Betts appealed the decision, but the ap- peal court agreed with the motions judge, finding that Betts failed to report to work for eight months, failed to follow the procedures in the STD plan by providing accepted medi- cal information, and moved to Ontario with- out informing his employer. Both the motions judge and the appeal court found the above factors indicated that Betts abandoned his employment. ough he suffered from depression and anxiety dis- orders, he didn't follow through on what was required of him to support his absence or his application for STD benefits, even though he obviously knew what to do because of his earlier stint on STD. In addition, the five ab- sence option letters were clear on what IBM needed from him and gave him plenty of op- portunity to remedy the situation, said the appeal court in dismissing the action. "Over a period of eight-and-a-half months, IBM offered (Betts) numerous chances to submit appropriate medical evidence to es- tablish that he could not return to work," said the appeal court. "As the motion judge noted, even an employee suffering from medical is- sues is not immune from being found to have abandoned his employment." See Betts v. IBM Canada Ltd., 2016 Car- swellOnt 7483 (Ont. Div. Ct.). Worker denied getting aggressive with manager

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