Employee’s refusal to come back to work motivated by issues from earlier grievance, not medical problems: Arbitrator
A Vancouver city worker who refused to come back to work after a medical leave wasn’t unfit for work but rather had an axe to grind, the British Columbia Arbitration Board has ruled. As a result, his defiant behaviour led to a more permanent leave when he was dismissed from his employment.
Kerry Grant began working for the City of Vancouver as a seasonal labourer in the paint shop in July 1999. In June 2002, Grant had a heart attack and had to take time off until December 2003, when his doctor submitted an occupational fitness assessment declaring his fitness to work again.
Grant continued to work until April 15, 2004, when he had to take a leave because of the aggravation of “daily stressors.” He returned to work on a graduated program a few months later but was in a car accident that kept him absent until December 2004.
When he returned after the accident, Grant worked regular hours until the end of May 2005, when he had to take time off again due to chest pains and anxiety caused by workplace stress.
In January 2007, Grant was still on sick leave so the city had him assessed by a doctor from its health provider. The company doctor was told by Grant’s family physician that Grant needed counselling before coming back to work, so in March 2007 the city sent information on free counselling services offered by its employee assistance program (EAP).
Letter from physician indicated fitness for work
In August 2007, Grant’s physician wrote to the city’s health provider and said Grant was physically fit to return to work but needed counselling. However, other than his anxiety, the physician said there was “no other barrier to his fitness to work” and “I must declare him fit to return to work.” Since Grant had information on the counselling needed, the health provider informed the city he was ready to return, though a work stoppage commenced two weeks later.
The work stoppage ended on Oct. 15, 2007, and Grant’s supervisor wrote to Grant informing him he expected Grant back at work on Oct. 18, or else he needed medical information to support his absence. Failure to do so would result in discipline up to and including termination.
Grant said he was unaware he had been medically cleared and there was also a “legal issue” related to previous grievance that he had to discuss with his lawyer before coming back. The supervisor reiterated the demand to return to work and said Grant’s employment would be in danger if he failed to show up.
Grant responded by saying his doctor had not cleared him for work. He refused to provide additional medical information because he had not completed the counselling he needed due to the cost of the private sessions he desired. He also raised his earlier grievance again, which involved a complaint that he had been denied full-time status and benefits because of his illness in 2003.
On Nov. 22, 2007, the city informed Grant that based on the medical information it had, he was fit to return to work and it had given him ample opportunity to do so. It declared him absent without leave and subordinate, terminating his employment unless he provided additional medical information within five days.
Grant said he would not return to work without proper medical clearance and regular full-time status and benefits. The union filed a grievance for unjust dismissal, claiming Grant was discriminated against because of his disability and he had not been cleared to return to work because his physician wasn’t asked to fill out a fitness assessment, as with his previous medical leaves.
The arbitrator found the statement by Grant’s physician in August 2007 that Grant was fit to return to work without any other barriers other than anxiety was sufficient information to request his return. Though the physician’s letter was somewhat ambiguous on the anxiety issues, it clearly stated Grant was fit to return to work. The only information the city had was what it received from the health provider, which was that Grant was able to come back to work, said the arbitrator.
The arbitrator found in these circumstances, Grant had the responsibility to either come to work or meet with the city and provide information supporting his absence. However, he was unco-operative and tried to use his absence as leverage for the demands from his previous grievance. The arbitrator also noted if Grant couldn’t pay for the cost of two private counselling sessions, he could have used the free counselling offered by the city’s EAP, which the city had recommended.
“(Grant) exhibited no real appetite to return to work until his seniority and benefits grievance was resolved to his satisfaction,” said the arbitrator. “(Grant’s) absence was a function of his stubbornness and defiance, as opposed to any medical issue.”
