‘There should have been a frank discussion about sharing the role rather than disrespectful treatment’
“When someone is on medical leave and says they're ready to return to work, the employer has to engage with them right away - if there are restrictions, then there should be a frank discussion about whether those restrictions are compatible with the employee resuming their previous role, or whether someone else has to continue doing it.”
So says J. Geoffrey Howard, principal and founder of Howard Employment Law in Vancouver, after the British Columbia Supreme Court ruled that a worker was constructively dismissed when her employer removed her from her role during a medical leave and failed to reinstate her upon her return.
The worker was hired by the Osoyoos Indian Band (OIB), a First Nations government based in Oliver, BC, in 1999 as a receptionist. She later became an executive assistant to the band administrator, the OIB chief, and the chief financial officer. The worker completed a university program and became the first certified OIB First Nations tax administrator in 2009, and the band created the position through a band council resolution.
In July 2017, the worker went on medical leave for emergency surgery. She returned to work in September, but she learned of a job posting for a tax administrator trainee about which no one had informed her about, which was unusual because she was head of the tax department.
The chief assured the worker that the role would be a “floater” who would help her during busy times and also help the accounting department.
Medical leave for work stress
A trainee was hired, but she was the sister of the band’s HR director, who declared a conflict of interest and hired a part-time employee to deal with the new hire and the tax department. The new employee understood that she was training to be a tax administrator.
In March 2018, the new employee emailed complaints to HR about the worker, but the worker wasn’t informed. The chief started pressuring the worker to train the new employee more quickly, which led to more stress for her as she prepared for the upcoming tax season.
The stress became too much and the worker went on medical leave in April after her doctor diagnosed her with stress from her experiences at work. The chief demanded details about her medical condition, but her doctor refused to provide private medical information. The worker received disability insurance benefits during her leave.
Unbeknownst to the worker, during her medical leave the OIB passed a band council resolution appointing the new floater employee as tax administrator.
In November, a rehabilitation consultant from the third-party insurance provider tried to contact OIB to discuss the worker’s graduated return to work (GRTW). He was unsuccessful and tried several more times without results until June 2019, when it was agreed that the worker’s GRTW would begin on July 10 and run for eight weeks, at which point the worker would be able to perform her full duties.
Graduated return to work
When the worker arrived on July 10 with an occupational therapist, she had to sit at a temporary table instead of her regular desk, which was occupied by the new employee. The worker was assigned filing tasks that weren’t her regular duties and she was supervised by an employee who was at the same level as the worker.
Over the next several days, the insurer’s consultant recommended that the worker start performing her regular work, but the HR representative took the position that the worker was there to observe and her expectation of having her former desk was unreasonable.
At the end of the GRTW in September, the worker still had a temporary workstation because OIB said they were unsure of her abilities. The worker was told her role was the same as before her medical leave, but an organizational chart was distributed showing the worker and the newer employee as “taxation officers” with equal status.
The worker was subsequently told that her duties would be split with the other taxation officer, who would also deal with budgeting and accounting matters as she had done during the worker’s medical leave. The worker viewed this as a demotion.
On Sept. 27, the worker found her personal items from her old workstation at her new one. Her new boss told her that she had put the items in storage during the worker’s medical leave, but she didn’t know who had placed them on her new desk. The worker was confused as to why they had been kept from her and left the office in tears.
Constructive dismissal allegation
The worker saw her doctor, who observed worsening symptoms similar to post-traumatic stress disorder (PTSD). The doctor recommended that she not return to work at the OIB. The worker sued for constructive dismissal, while the OIB maintained that she had resigned voluntarily.
The worker’s PTSD-like symptoms continued for two years after she left the OIB.
The court referred to the two branches of the constructive dismissal test – an express or implied breach of the employment contract that’s fundamental or substantial, and employer conduct that would lead a reasonable person to conclude the employer no longer intends to be bound by the contract terms.
The court noted that during the worker’s medical leave, the OIB appointed the newer employee to the tax administrator position without informing the worker and, when the worker began a GRTW, she was denied access to her original workstation, essential tools, and responsibilities. The removal from her position and replacement by a more junior employee was a unilateral and “fundamental or substantial change to the contract of employment,” said the court.
The court also found that OIB’s lack of communication for months regarding the GRTW, the work it provided, and the change in the worker’s title and reporting structure showed that it didn’t share the goal of getting the worker back into her old position.
“The court noted that the initial request through the rehab consultant for the GRTW was essentially ignored, and then when [the worker] was brought back to work, she wasn’t given her old duties but instead was given menial administrative duties,” says Howard. “And during the GRTW, she was treated without any respect and essentially as a junior administrative employee, whereas before she'd been the head of the tax department for the band.”
Repudiation of employment contract
In addition, there was no evidence to support a voluntary resignation and any criticism of the worker’s job performance was irrelevant, as the OIB didn’t allege just cause, the court said, noting that the OIB removed the worker from her position as tax administrator and awarded it to the newer employee while failing to inform the worker. All of the OIB’s actions amounted to a repudiation of the employment contract, said the court.
“It was a cumulative effect of disrespectful treatment that started with the previous medical leave when [the OIB] hired someone to her department without her involvement, and the court found this foreshadowed what would happen later when she went on a lengthy mental illness leave,” says Howard. “This person essentially assumed her role and she was told that she would no longer report to the chief and would be given half of the tax collection for which she’d been responsible previously - which the court found was a culminating incident in a course of conduct by the OIB that was a constructive dismissal.”
Noting medical evidence that the worker suffered PTSD-like symptoms from the workplace environment and the OIB’s actions, the court found that aggravated damages were warranted.
The OIB was ordered pay the worker damages representing 24 months’ notice of dismissal and $50,000 in aggravated damages.
The aggravated damages amount reflects the level of bad faith and the impact on the worker’s mental health, according to Howard.
“There was medical evidence that this had been devastating for her mentally and the award reflected serious mental illness caused by this course of conduct,” he says. “With amounts we're seeing now, $50,000 isn’t the upper end - there's been some inflation in both the number of these awards and their amount – it’s in the middle of the pack, and these days awards, especially in other provinces, can be even higher.”
The OIB’s approach to the worker’s leave and GRTW made it liable for significant damages, says Howard.
“The obvious step would have been, when her doctor cleared [the worker] for a return to work, if there was an issue about the need to have another tax administrator, then there should have been a frank discussion about sharing the role rather than the disrespectful treatment over the GRTW period,” he says. “They could have approached it as [her absence being] an undue hardship – ‘We had to replace you, but we want to split the responsibilities’ - but if that was the plan, they didn't voice that.”
