Depressed employee’s resignation upheld (Legal View)

Worker's decision to quit was thought out, not impulsive
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 10/26/2016

An Ontario worker’s bid to get his job back after he claimed stress and depression caused him to resign has been denied by an arbitrator.

The 40-year-old worker was a professional engineer at Ontario Power Generation (OPG), a utilities company. OPG recruited the worker out of university in 1999 after he completed a master’s degree in engineering. He worked without any major problems until Jan. 1, 2010, when he went on sick leave.

The worker's sick leave was due to severe mental stress and depression. His condition became unmanageable when his marriage broke up, necessitating the sick leave.

He collected long-term disability (LTD) benefits from OPG’s insurer, Great-West Life (GWL). The benefits were dependent on the worker maintaining his status as an OPG employee. In addition, the worker had to receive continuing treatment by a physician or certified psychiatrist to continue receiving benefits.

During his leave, the worker took regular medication for depression, panic, insomnia and anxiety. He also participated in a six-week mental health day treatment program in July and August 2010 — but he said it didn’t help him. Around the same time, the worker and his psychiatrist decided his mental health might improve if he attended an ashram, or yoga retreat, in India for six weeks.

The worker took the proposal to GWL but it didn’t think his condition would be significantly improved by such a trip. It also felt the worker could practice yoga and meditation in Canada. GWL also consulted a psychiatrist who didn’t think yoga was better than medication and psychotherapy.

The worker continued to push his ashram proposal to OPG and GWL, who remained cool to the idea. GWL told the worker if he went to an ashram in India, it would halt his LTD benefits because it wouldn’t be part of his approved treatment. The worker claimed he felt extra pressure because of the refusals, which led to panic attacks. GWL requested more medical information so it could evaluate his condition and asked him to undergo an independent medical assessment. The worker refused, saying he was too stressed to go through with the examination.

In September 2010, the worker wrote to OPG’s CEO complaining the company was harassing him by threatening to suspend his LTD benefits. Near the end of the month, he suffered a panic attack that required him to go to the hospital. Shortly thereafter, GWL wrote to the worker, reiterating its position the treatment in India was not linked to his approved psychiatric treatment and it would not pay any of his expenses. It asked him again to undergo an independent assessment so it could better understand his treatment needs.

GWL’s consulting psychiatrist also spoke to the worker’s psychiatrist and reported the worker needed “to learn to manage his symptoms in the context of the normal stresses of his job and personal life, not just in the tranquil environment of an ashram.”

Frustrated, the worker decided to go to India anyway. He left on Oct. 18, 2010, and his psychiatrist gave GWL contact information for another psychiatrist in India who would follow the worker's treatment. GWL stopped his LTD benefits.

After learning of his benefits cancellation, the worker emailed his supervisor, OPG’s vice-president, an OPG wellness representative and his union steward, saying he was resigning his position at OPG. He requested an employment letter and that his personal effects be shipped to his Ontario address.

The supervisor responded, asking the worker for a confirmation of what items he had in his possession that were OPG property. The worker emailed back, saying he couldn’t confirm because he was in India. The worker also exchanged emails with the union steward a few days later, indicating he would cancel his car insurance and requesting the steward, who was also his friend, give his car to “someone who needs it.”

The worker sent a hard copy of his resignation letter on Nov. 2 from India, which OPG received on Nov. 22.

On Nov. 14, the worker emailed the wellness representative and said his resignation was impulsive and “a symptom of my illness.” The back-and-forth communication with GWL and OPG built up his stress and contributed to his decision, he said. The union filed a grievance, claiming the worker lacked the capacity and judgment to resign and should be reinstated or compensated for OPG’s failure to recognize the extent of his mental illness.

Generally, a resignation statement should be taken seriously and when an employer accepts that statement, it should take a lot to “countermand the termination of the employment relationship,” said the arbitrator.

The worker's resignation email discussed his pension, where to send his personal effects and his intention to send a hard copy. He also discussed his car insurance and the overall tone seemed to convey the worker’s decision was thought out and not impulsive, said the arbitrator.

This was followed up with other emails over a few days that discussed his resignation with various contacts at OPG, including his union representative and supervisor, which demonstrated the worker's “appreciation of what he was doing.”

There was no medical evidence indicating the worker was unable to make a rational decision at the time of his resignation, said the arbitrator. He told his psychiatrist more than 10 days after he retracted his resignation he was depressed, didn’t have clear judgment and regretted it, but there was no official medical opinion stating he didn’t have the capacity to make such a decision.

Though the worker claimed the resignation was an impulsive act, the fact he clearly communicated with several OPG staff, his union steward and emailed a signed version of his resignation four days later showed otherwise. The resignation retraction appeared to be a change of heart rather than a change in mental lucidity, said the arbitrator.

The arbitrator upheld the resignation but since mental illness was a factor in the resignation and severance of LTD benefits, some compensation was warranted. OPG was ordered to pay the worker one year’s pay for his length of service and the human rights issues.

For more information see:

• Ontario Power Generation v. Society of Energy Professionals, 2011 CarswellOnt 14373 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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