In a recent case, the employer dismissed the employee when she did not return to the workplace following an allegedly unauthorized medical absence. However, the employer had improperly denied the fact that the employer’s medical absence was tied to her suffering from an adjustment disorder with associated anxiety and depression, a disability that had been diagnosed by a medical professional.
As a result, the labour arbitrator in the case found that the employer had unjustly dismissed the employee by discriminating against her disability. The arbitrator ordered the employee to be reinstated to her position, and to be compensated for the wages she had lost due to her unjust dismissal, as well as to receive damages for the employer’s violation of her human rights.
The dispute arose as a result of the employee taking leave from work beginning in June 2018 as a result of a set of chronological events that put a strain on the employee and led to the employee gradually developing a diagnosed adjustment disorder with associated anxiety and depression.
The set of events began when the employer received a small number of complaints about an exhibit the employee had created for the employer. The employer was the Canadian War Museum, and the employee was the historian of War and Visual Culture for the Museum. She had a reputation and high profile in the local arts community. It appears from all accounts that the employee was successful in her position until these events started happening.
In the first event, several complaints took issue with the wording used in the exhibit and interviews regarding the exhibit. For example, senior management of the museum expressed concern that she used the word “Palestinian” to describe one of the photographers in the exhibit. A few weeks later, the Museum received a written complaint of a different nature where the concern revolved around the wording used in the exhibit. A second complaint raised concern that the exhibit referred to Gaza as being an “occupied territory” after 2016.
The employee was never shown the written complaints. After meeting with management, she was asked to issue a written apology to the Museum’s CEO who blamed her for the controversy, but this never materialized. She was also asked to contact the curator and sponsor of the exhibit to ask that the wording be corrected. The curator of the exhibit was angered by the request. The employee felt humiliated by this conversation and worried that it could do irreparable damage to her reputation as an academic and historian. However, nothing came of this.
Soon thereafter, the museum’s Director General was dismissed and senior management met with the employee to inform her that she “had nothing to worry about” following his dismissal. Being confused by what she viewed as an odd comment, the employee began obsessing over her future with the organization. The employer had not intended the comment to threaten her but to reassure her. However, this conversation served as a catalyst in her adjustment disorder.
Events that soon followed reinforced that perception. For example, the employee was removed from certain projects and assigned to others that she felt was outside of her area of expertise. In one case, the employer assigned another historian to serve as a leader in an exhibit which was connected to her specific area of expertise. Also, the employer refused to fund her travel expenses connected with a trip to speak at an important academic lecture. Finally, the employer declined to provide funding for the employee to screen movies at a film festival, requesting that she screen films at the museum instead.
In response to these events, the employee began experiencing panic attacks and chest pain. She described crying in the workplace and began to obsess about her treatment by management. Eventually, the employee was diagnosed with an adjustment disorder with associated anxiety and depression, which was explained by a psychologist as “an emotional or behavioural reaction to psychosocial stressors where faulty thinking is at the root of the problem.”
The employee’s adjustment disorder included a variety of symptoms including visible anxiety, feelings of hopelessness and chest pain. Based on these symptoms, the employee’s family doctor provided a diagnosis and insisted she take leave from work and begin psychotherapy sessions with a psychologist. The note provided by the doctor had been automatically generated and lacked any specific information on her diagnosis other than to identify her as “totally disabled.”
In the fall of 2018, the employee’s insurer denied the employee’s request for long-term disability benefits. The employer questioned the validity of the employee’s absence, which it viewed as being suspicious due to the fact that she had been denied a request for family leave one month prior. The employer also felt that the employee had failed to provide adequate medical documentation.
The employer had concerns about the validity of her claim, given that it coincided with her request for family leave. They asked for more proof, which resulted in her doctor including an outraged note in his second letter saying, “It is frankly insulting that non-medical personnel have deemed that my medical assessment is not valid.”
In 2019, the employer hired another doctor to solicit an independent medical assessment (IME) to review the employee’s medical information. The employer’s doctor spoke to the employee’s family doctor and concluded that her absence was unsupported by any objective medical information. However, the employee’s doctor extended her medical leave with a gradual return-to-work plan starting on March 25th.
Soon after, the employee’s appeal of her denial of long-term disability benefits was also denied by her insurer. From this LTD decision and the IME results, the employer concluded that the employee was required to return to work or face discharge. When the employee did not return to work as expected, the employer dismissed her with cause for refusing to return to work as directed. As she was dismissed with cause, the employee was provided no notice of her dismissal.
The employee and the union grieved the termination, arguing that she was off work for legitimate medical reasons.
The union stated that the employer’s decision to terminate the employee was contrary to Article D10.06 of the collective agreement and section 25 of the Canadian Human Rights Act (CHRA). The employee could not return to work due to her disability, and the employer failed to accommodate her request to return on a later date as proposed by her family doctor. In the end, the employee was following the advice of her medical team to stay off work until she was medically fit to return. The union asked that the employee be reinstated with lost wages and order damages for breach of her human rights.
The employer argued it had cause to terminate the employee’s employment and said the problem had to do with her failure to provide medical proof she was totally disabled from working-not the fact she suffered from a medical condition. The employer also stated that the employee was not targeted as per the series of events.
Analysis and decision
It is important to note the following as stated in the court transcript:
235. Much of the evidence, in this case, focused on the period before the Grievor [employee] went off on medical leave in late June 2018. Although this evidence is not, in my view, determinative of the outcome, in this case, it provides some context for why she went off work. The chronology of events is not in dispute. What is disputed is how the Grievor characterized these events and what [Museum management] said to her when the two would meet to discuss the issues.
238. Her meeting with [Museum management] in February 2018, however, left the Grievor feeling most vulnerable.
The arbitrator’s decision, in this case, details the back and forth between the employee, her doctor, the union, the museum, an insurance company, a psychologist and an outside doctor hired by the employer to get a second opinion.
This second opinion stated that the employee’s problems were due to an “alleged human resources issue” and that there was no “medical reason why she cannot return to work.” The arbitrator called the report “flawed” because the doctor attributed all of the employee’s problems to workplace conflict (series of events in which the employee felt targeted) without giving any real consideration to the medical evidence.
The arbitrator agreed there was no evidence to conclude that management deliberately targeted the employee. But that wasn’t the point because she held the “honest belief” she was being singled out and it was making her sick. The arbitrator found the employee’s decision not to return … “was made in good faith and was based on the advice she was receiving from her doctors.”
“Enough things were happening to lead her to believe rightly or wrongly that she was no longer in management’s favour and that decisions were to her disadvantage,” the arbitrator wrote.
At the end of the day, the arbitrator found the employee provided enough evidence to show that-on the face of it, she was unable to return to work.
“The employer, in my view, has put forward no evidence to contradict this conclusion,” the arbitrator wrote. “I accept that her decision was made in the best interest of her health and cannot be interpreted as wilful insubordination.”
Also, the denial of benefits is “not conclusive as to whether or not an employer needs to accommodate that employee.” The arbitrator noted that the insurer didn’t give any advice other than its adjudication of her LTD claim. Despite this, the employer relied on the claim denial to support its termination decision. The employer should not have relied on a third-party medical opinion that, in the opinion of the arbitrator, was not comprehensive enough.
The arbitrator found that there was a difference between determining the viability of the LTD claim and the employee’s medical leave. The former was based on whether the employee was able to perform her job duties, while the latter related to whether she was medically fit to return to work. Neither the independent assessor nor the insurer considered whether the employee was mentally capable of returning to work and the employer made a mistake by not performing its own analysis, said the arbitrator.
The arbitrator also found that the opinions of the employee’s own medical team should have been given more weight than the independent assessor. This was especially important for mental illness, where the subjective reporting of symptoms was “an inescapable part of diagnosing mental health disorders,” the arbitrator said.
As a result, in the lengthy decision, the arbitrator found that the employer unjustly terminated the employee in March 2019 nearly a year after she went on leave because of a disorder linked to work-related anxiety and depression. The arbitrator determined that the employee’s termination was unjust under the Canadian Human Rights Act and the collective agreement.
It was also found that the employee should be compensated for lost wages, and she was entitled to human rights damages for the employer’s failure to accommodate her disability-despite notes from two doctors saying she wasn’t ready to return to work on the date set by her employer.
A cautious approach to assessing disability
Assuming that an employee’s reported disability is fake is a risky practice and should be avoided. While having some skepticism is natural, deciding to deny the reality of a reported disability should only be undertaken with great caution. Advocating for a cautious approach to judging the veracity of employees’ reporting of disability is not to say that employers should simply assume that every reported disability is legitimate. Instead, such a cautious approach requires that employers investigate every request for accommodation due to a disability with a thorough and consistent approach. Instead of haphazardly examining medical documents and determining their accuracy without assistance, employers should undertake a process of assessment that is predefined in the workplace policy.
This policy should set out a procedure that aims to ensure that every request for accommodation is approached with the same level of care and attention. By giving every request the same level of seriousness and detailed investigation, an employer will ensure that their decisions are driven not by bias but by objective assessment.
Also, the denial of long-term disability benefits by an insurer does not prove that the employee does not have a disability or negate the employer’s duty to accommodate an employee’s disability under human rights legislation. It just means the employee’s claim has not been approved and this may be due to various reasons other than the validity of the disability.
An insurer’s acceptance or not, of a long-term disability claim does not end the employer-employee relationship. The employer must still accommodate the employee; this means a disabled employee no longer receiving benefits or rejected from receiving benefits, cannot be compelled to return to work if a doctor has diagnosed a disability as defined by human rights legislation and still recommends the employee take time off for treatment and to recover. It may also mean allowing them to remain off work without pay or gradually return to work, starting with part-time hours if they remain unable to work due to the disability.