Doctor`s note didn`t indicate when worker would be able to return
A British Columbia childcare centre incorrectly assumed an employee who was declared unfit for work for four weeks could no longer do the job and frustrated the employment contract, the B.C. Employment Standards Tribunal has ruled.
Iris Twidale was an early childhood educator (ECE) for Tune Town, a day care business in Victoria, hired in October 2012.
On March 8, 2016, Twidale received a note from her doctor stating that she was “unfit for employment, for medical reasons, for the next four weeks, pending further review.” She tried calling Guy Brisebois, Tune Town’s owner, and her manager, but couldn’t reach them, so she texted the note. She also requested a record of employment (ROE).
The next morning, Twidale’s manager texted her to see if she was okay. Twidale responded that she was fine but her doctor didn’t like certain test results. When Brisebois saw the note, he felt it put him in a difficult situation because Tune Town had exactly the number of ECE’s required to meet regulatory requirements for the ratio of ECE’s to children. Since there was no indication of when Twidale could return to work and it would be difficult to hire a temporary replacement on short notice, he contacted the Vancouver Island Health Authority for advice. According to Brisebois, the health authority indicated that since Twidale was “unfit for employment,” he couldn’t employer her until she was fit. Under B.C.’s childcare regulation, ECE’s working for him would have their licences revoked if he couldn’t prove they were physically or psychologically fit for employment.
Brisebois contacted the provincial employment standards branch, who told him if Twidale couldn’t meet the minimum standards for the position, he could terminate her for “just cause.” Brisebois then terminated Twidale without asking for further details about her medical condition.
Twidale filed an employment standards complaint, saying Tune Town wrongfully dismissed her by failing to pay her compensation for length of service. She also denied that her ECE licence had been revoked and that her ECE certificate was dependent on her medical fitness for work.
A delegate of the B.C. Director of Employment Standards found that Tune Town didn't establish just cause to terminate Twidale’s employment. There was no misconduct and Twidale had no disciplinary history. In addition, there was no evidence Twidale’s illness was permanent and she wouldn’t be able to return eventually.
The delegate also noted that the province’s Child Care Licensing Regulation allowed Tune Town to replace an ECE who was absent due to illness, emergency, vacation, or temporary leave with an ECE or ECE assistant for up to 30 days. Brisebois didn’t investigate this option and he was mistaken when he thought Twidale’s ECE certificate was revoked, said the delegate. Twidale’s doctor’s note indicated she would be unable to work for four weeks.
The delegate concluded Twidale was entitled to compensation for length of service for her dismissal. Brisebois appealed, arguing that Tune Town required all employees have “up to date medical notes” to work in a childcare setting and Twidale refused to discuss her medical condition or work with him on a plan for when she returned to work. He also insisted that she no longer met the requirements of the job.
The tribunal found the Brisebois’ arguments were not backed up by evidence. There was still no evidence of disciplinary or performance issues that would provide just cause for dismissal and the doctor’s note itself didn’t indicate Twidale was permanently unfit for work. It was Brisebois who interpreted the note to mean Twidale wouldn’t be able to perform the duties of an ECE going forward and he didn’t seem to consider that she would be able to come back, said the tribunal.
“The tenor of the (termination) letter, written one day after Mr. Brisebois received Ms. Twidale’s note, suggests that he was more concerned about his daycare business than Ms. Twidale’s wellbeing or the prognosis for her return to work,” said the tribunal.
The tribunal agreed with the delegate’s finding that the employment contract was not frustrated, as the doctor’s note indicated Twidale would be unfit to work for four weeks pending further assessment. Since Brisebois terminated Twidale the day after he received the doctor’s note, there was no way he could have properly assessed what he could do to replace her or that she was permanently disabled, the tribunal said.
Brisebois provided evidence that the regulation requires Tune Town to obtain a medical note on potential employees’ fitness prior to hiring, but the tribunal found this didn’t apply to someone who was already an employee — Twidale had been with Tune Town for three years.
The tribunal upheld the delegate’s decision and dismissed the appeal, ordering Tune Town to pay Twidale compensation for her service with the company. See Brisebois, Re, 2016 CarswellBC 3295 (B.C. Emp. Standards Trib.).
