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Issue link: https://digital.hrreporter.com/i/856885
8 | August 16, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends taining the electronic medical record system (Plexia), dealing with operational issues, and general administrative support. e job also involved co-ordinating with other clinics where the doctor worked outside of his pri- mary office. In early December, Whitmore completed her training satisfactorily and the doctor of- ficially offered her the medical office assistant position with a pay increase. However, over time, Whitmore had some issues about which the doctor was concerned, including that she had difficulty scheduling patients and bill- ing, she was slow learning new tasks, and she didn't follow private billing procedures. She also failed to advise the doctor that his waitlist of patients had diminished, so he wasn't able to take action to increase the number of pa- tients and avoid a drop in his income. e doctor met with Whitmore to discuss these issues on March 5, 2015, though Whit- more denied any performance concerns were raised. On July 20, 2015, Whitmore asked the doctor for a pay raise. e doctor said she was being paid more than they initially agreed upon and he still had concerns over her performance, so there would be no raise at that time. e doctor attended a meeting at the University of British Columbia on Oct. 2, 2015, where he told other physicians he was fully booked with referral patients. Howev- er, when he returned from the meeting, he checked his waitlist and found only four pa- tients on it. He was surprised, as he normally had a waitlist of more than 40. e doctor asked Whitmore about the waitlist a couple of weeks later, and she re- sponded by saying she hadn't wanted to tell him for fear of upsetting him. She later testified that his income and bookings had been down for months and he had reduced his outside clinic work, leading to fewer re- ferrals. e doctor considered terminating Whitmore's employment, but he didn't want to recruit and train a new employee before Christmas. Since he hadn't been able to take pre- emptive steps to improve his waitlist situa- tion, the doctor made some adjustments and travelled to more outlying clinics, hoping Whitmore's performance would improve. Medical leave In January 2016, Whitmore had a medical issue that required corrective surgery. She went on medical leave and the doctor as- sured her that her job would still be there when she was able to return to work. While she was on leave, the doctor continued to pay her full salary for a month, when he sug- gested she apply for employment insurance (EI) benefits. He then arranged a supple- mental benefits plan that topped up her EI benefit to 92 per cent of her pre-illness in- come for 15 weeks. In mid-February, Whit- more emailed the doctor to say she missed work and would return as soon as she was "whole." e doctor suggested she come back initially for "just a day a week to test the waters" when she was ready. Whitmore tried to return to work on March 2 but was unsuccessful. She was wor- ried that her job was in danger and she had run out of medication, so she asked the doc- tor for a repeat prescription. She was sore and felt "wiped out" after being in the office for a short time. She tried to book some ap- pointments, but some were done incorrectly and the nurse had to reschedule them. e doctor hired a temporary medical of- fice assistant in late March for one month, with a possible extension to June if neces- sary. Shortly thereafter, on April 1, Whitmore came to the office in her work clothes and said she was ready to work. e doctor agreed to a one-day assessment, but it became apparent she still wasn't ready to return. e doctor subsequently asked Whitmore for a letter from her surgeon and primary care physician to determine when she was fit to return to work. Shortly after Whitmore's second attempt to return to work, the temporary assistant discovered more than 300 unsent faxes in the fax machine that Whitmore had failed to send. Most of them had incorrect num- bers or characters entered and some had encountered a busy signal. e unsent faxes included consultation reports about patient diagnoses and special medication requests. e doctor was concerned as pa- tient safety had been put at risk because the faxes hadn't been sent. Whitmore met with the doctor on April 15 to discuss the fax issue and concerns the doc- tor had with billing, lost referrals, and the di- minished waiting list. Whitmore denied there was an issue with billings, said the waitlist would turn around, and claimed the unsent faxes were the result of a technical issue. e doctor was also able to confirm Whitmore was medically cleared to return to work. Whitmore returned to work on April 18 for a one-day trial and was fine physically. However, the doctor noticed she spent a lot of time trying to figure out the fax program and on the phone with technical support for the Plexia medical record system. She also prepared an invoice for a medical legal re- port to send with the report, contrary to the doctor's instruction that she obtain payment before sending the report. e doctor later found the invoice tucked in her desk drawer instead of a folder for unpaid invoices. e next day, the doctor asked his nurse how she felt the day went with Whitmore, and the nurse replied that is was "just like before she got sick." e nurse also said she had tried to teach Whitmore the referral and booking process for a new clinic the doctor worked at two days per month, but she ap- peared disinterested. e doctor decided he couldn't trust Whitmore to do her job effectively or with important tasks anymore. Whitmore was still officially on medical leave, so he emailed and texted her that she was being terminated. Whitmore filed a human rights com- plaint accusing the doctor of discrimina- tion based on disability, since she was fired while on medical leave and the doctor tried to get her to return before she was able. e doctor applied to have the complaint dis- missed on the basis it had no reasonable prospect of succeeding. e tribunal dismissed the complaint, finding that Whitmore was terminated be- cause of numerous performance issues, not her absence due to disability. Evidence from the doctor, the temporary assistant, and technical support provided no reason the faxes hadn't been sent other than operator error and Whitmore's blaming of technical issues was unsupported "speculation and conjecture," said the tribunal. ere was also no evidence the doctor tried to get Whitmore to return early, as their communication and his EI supplement indicated support for her to take sufficient time. In fact, he cautioned her against re- turning too soon and wanted medical clear- ance before she came back. e tribunal also found the doctor had concerns over Whitmore's performance for most of the time she was employed with him, so it was nothing new by the time she went on medical leave. "I find that (Whitmore's) assertion that her disability was a factor in her dismissal does not rise above the level of speculation or conjecture," said the tribunal. "In the circumstances of this case, timing alone is insufficient in my view to raise (Whit- more's) complaint above conjecture and speculation." For more information see: • Whitmore v. Dr. J.T. Kelsall Inc., 2017 Car- swellBC 1415 (B.C. Human Rights Trib.). Initial return-to-work attempt was unsuccessful « from FIRING on page 1 More than 300 unsent faxes were discovered in the fax machine, most containing important information.