Worker said he wasn't able to work anymore, which 'the nail in the coffin' for accommodation, says lawyer
A worker on medical leave who failed to meet a return-to-work deadline frustrated the employment contract, the Alberta Human Rights Tribunal has ruled.
The employer was sloppy in certain aspects of the accommodation process, but once it had evidence that the worker wasn’t returning in the foreseeable future, it could argue frustration, according to Jackie Laviolette, an employment and labour lawyer at Matthews Dinsdale in Calgary.
“The employer saw those magic words that said [the worker] had permanent restrictions and that they couldn't work for the employer,” says Laviolette. “There's no better evidence than this of frustration of contract coming from the worker - the medical evidence is never usually that clear in terms of permanent restrictions.”
Disability benefits with medical leave
The worker was employed with Syncrude Canada, a joint oil sands venture in Fort McMurray, Alta., operated by Suncor.
In late 2016 through early 2017, the worker consistently felt ill and was depressed. A doctor diagnosed him with post-traumatic stress disorder (PTSD).
The worker took a medical leave in May 2017 and applied to the Alberta Workers’ Compensation Board (WCB) for benefits. His claim was accepted and Syncrude supplemented the WCB benefits with its own temporary disability plan, which aided employees who weren’t able to work because of health issues and were able to meet certain criteria.
In October 2017, the worker missed an appointment that the WCB had scheduled for him and Syncrude suspended his disability benefits for not complying with the terms of the program. The worker claimed that he hadn’t been told of the appointment and showed up for the rescheduled appointment, so Syncrude restored the benefits.
The WCB scheduled the worker for an intake screening for a traumatic psychological injury (TPI) treatment program in late October. However, Syncrude requested that he undergo an independent medical examination (IME), which the worker’s doctor and occupational therapist thought was premature.
“If you're asking an employee to go for an IME, you want to show that you have engaged less-intrusive means first so that you have a full understanding of where they are in their treatment,” says Laviolette. “Going to the employee and asking their physicians or their treatment providers to at least fill in a questionnaire before going to an IME illustrates that step of the least intrusive means first.”
The worker agreed to attend the IME in November, although he felt it exacerbated his PTSD. The IME doctor determined that the worker should be fit for a non-safety-sensitive position.
The duty to accommodate includes reasonable options, not the worker’s preferred ones, the Alberta Human Rights Tribunal ruled.
Accommodated position not a fit
Syncrude found a desk position in Fort McMurray for the worker. It knew that he hadn’t started the TPI program yet, but it didn’t feel that the worker was keeping it informed of his health conditions. It believed that the desk position would allow for exposure therapy to its worksites.
The WCB stated that the worker could return to modified duties, but not in Fort McMurray because the worksites there triggered his PTSD. Syncrude only had one potential position at its Calgary office, but it would require training and oversight that it couldn’t provide at that time.
Syncrude requested a return-to-work meeting and an IME in February 2018 so it could get an update on his treatment, but the worker was still in the TPI program.
On Feb. 13, Syncrude informed the worker that he was expected to report to work in Fort McMurray the next day. However, the worker was attending the TPI program in Calgary and it caused him to panic. He didn’t report for work and Syncrude suspended his temporary disability benefits again.
Syncrude told the worker that if he didn’t return by August, the company would consider him to have resigned.
IME requests can be justified as part of the duty to accommodate, an Ontario court ruled.
Permanent restrictions prevented work
On July 31, the worker’s lawyer sent a letter stating that the worker had “permanent restrictions that prevent him from ever working at any Syncrude worksite.” The worker didn’t return to work and Syncrude terminated his employment on Sept. 20.
The worker filed a complaint alleging that Syncrude discriminated against him on the ground of mental disability and failed to accommodate him.
Syncrude claimed that it had done all it could to accommodate the worker, but he didn’t provide sufficient information about his health and treatment. It also argued that it terminated his employment when it became clear that he could not work at any of its worksites and accommodating him would cause undue hardship.
The tribunal found that the worker’s PTSD was a disability protected from discrimination by the Alberta Human Rights Act and the suspension of his temporary disability benefits was an adverse impact. In addition, the suspension of the benefits and the termination of his employment arose from his disability, said the tribunal in finding that all three parts of the test for prima facie discrimination were met.
The tribunal noted that the onus was on Syncrude to prove that its standards were bona fide occupational requirements and it couldn’t accommodate the worker.
A BC employer was ordered by an arbitrator to pay an employee $5,000 after an IME that was too intrusive.
Test for bona fide occupational requirements
The tribunal found that Syncrude’s desire to regularly evaluate the worker’s ability and accommodation needs was rationally connected to the worker’s employment and it was reasonable for them to have a return-to-work date that wasn’t “too long down the road.” This met the first part of the test for a bona fide occupational requirement, said the tribunal.
The second part of the test was whether Syncrude adopted the standards with an honest and good-faith belief that it was necessary for the legitimate work-related purpose. The tribunal found that the IME request was hasty without consulting the worker or his doctors, but it was reasonable for Syncrude to set conditions on the payment of its benefits to ensure they were being paid to “the right people for the right reasons.” It was also reasonable to suspend payments if the worker appeared to not be complying, said the tribunal.
The tribunal noted that Syncrude promptly restored the worker’s disability benefits after the IME, showing that it was willing to work with the worker in the return-to-work plan. The worker and his treatment team did not provide Syncrude with regular updates on his treatment, but Syncrude still gave him six months to return to work. This timeline was “apparently harsh,” but it was reasonable given the lack of information, said the tribunal in finding that Syncrude believed that the gradual return-to-work approach was necessary for the work-related purpose.
The third part of the occupational requirement test involved determining whether the standard was reasonably necessary to accomplish the work-related purpose. The tribunal found that the worker requested accommodation to remain off work and on the disability plan while he continued his treatment. Syncrude only had one position that wouldn’t trigger his PTSD and it required resources that the company didn’t have at the time. Syncrude’s approach to the process was focused on getting the worker back to work if he was able to work, which was part of its legal obligation, said the tribunal in finding that the third part of the test was met.
The tribunal also found that once Syncrude received the letter stating that the worker was unable to ever work at one of its worksites, it had no options other than to terminate the worker’s employment. This was an event that neither party anticipated when they entered into the employment contract and it would be undue hardship for Syncrude to keep the worker on temporary disability benefits indefinitely, the tribunal said in dismissing the complaint.
A worker’s failure to co-operate with accommodation and investigation efforts led to job abandonment, an arbitrator found.
Inability to work
“Essentially the [worker] said that he wasn't able to work for Syncrude anymore, and that was really the nail in the coffin of the situation,” says Laviolette. “[Syncrude was] criticized in the way that they tried to accommodate the worker but, ultimately, the tribunal found that the employment was frustrated.”
Generally, employers should wait to see what the medical restrictions are before claiming frustration of employment, says Laviolette.
“The general rule of thumb is around the two-year mark, you should start to look at what the restrictions say and see whether the return to work will happen in the foreseeable future,” she says. “Ultimately the evidence that was provided in this case by the [worker] showed that he wouldn't meet the standard outlined by the Supreme Court of Canada, which was to return to work in the foreseeable future.”
