Existing medical note expired without employee's return to work
This instalment of You Make the Call involves a worker who was fired for not providing updated medical information to support a continuing absence.
The 54-year-old worker was a grocery supervisor with Calgary Co-operative Association, a chain of food stores and fuel stations in the Calgary area. He joined Calgary Co-op in 1981 and had no formal discipline in his file.
In July 2009 the worker hurt his ankle while on vacation. He provided a medical note saying he was to be off work for two weeks with no modified duties. He returned to work on Aug. 5. When the HR department followed up, it found there was no medical note indicating the worker was fit to return to work. He was sent home until he provided such a note.
On Aug. 11, the worker provided a medical note that said he was to be off work for 8 to 12 weeks with no modified duties. Calgary Co-op sent a questionnaire to the worker’s doctor seeking clarification of his medical restrictions and expected return to work. A week later, the doctor sent back the questionnaire, which to the company’s surprise stated his absence was related to depression and work stress, not his foot injury, and the 8- to 12-week timeline was “depending on progress.”
On Oct. 15, the worker provided another medical note indicating he needed a further four weeks off. The following week, the union received an independent medical assessment that diagnosed the worker with “adjustment disorder, with mixed anxiety and depressed mood.” However, the assessment was not sent to Calgary Co-op.
In November, Calgary Co-op contacted the worker to find out when he would be returning to work. The worker responded by requesting a buy-out package since he didn’t want to come back to work. Calgary Co-op declined and the worker said he needed to decide if he wanted to return at all.
Calgary Co-op sent the worker a letter saying he would have to provide medical documentation once his existing medical note expired on Dec. 9 or face dismissal. After no response, Calgary Co-op terminated his employment on Dec. 16, 2009.
The union filed a grievance, claiming the worker was unjustly dismissed and wasn’t provided with an opportunity to meet with management to explain his circumstances and why he didn’t provide updated medical information, as required in the collective agreement. The collective agreement had a provision that stated an investigative meeting with the employee and a union representative shall be held prior to discipline being undertaken by the employer. On Jan. 5, 2010, it provided a medical note from the worker’s doctor stating the worker was “advised to quit due to medical reasons.”
You Make the Call
Was the employee unjustly dismissed without an investigative meeting?
OR
Was the dismissal still valid?
If you said the dismissal was valid, you’re right. The arbitrator agreed with the union that Calgary Co-op violated the collective agreement when it failed to call an investigative meeting before making the decision to terminate the worker’s employment. However, the breach did not significantly change the outcome, said the arbitrator.
The arbitrator found there were several conversations that took place between the company and the union regarding the company’s request for updated medical information in November and December 2009. The company also was in contact with the employee and sent a letter advising him that failure to provide the information would result in his dismissal.
The arbitrator also found that the key issue was what harm the worker suffered due to Calgary Co-op’s breach of the collective agreement. Had an investigative meeting been held, the only thing that could have made a difference was the production of new medical information. Since the union and the worker had withheld new information up to and after the dismissal, it was unlikely that would have changed in the meeting, said the arbitrator.
“A more likely scenario is that the union and the (worker) would have reiterated their interest in a buyout, a course of action already firmly rejected by the employer,” said the arbitrator. “In short, inferences drawn from the evidence lead to the conclusion that calling an investigative meeting would not have altered the course of events.”
The arbitrator determined that missing an investigative meeting was an oversight — the evidence further indicated the company mistakenly thought it wasn’t necessary for an employee absent without leave — that didn’t change the decision to terminate. The only harm the worker received was the loss of opportunity — “however slim,” said the arbitrator — to avoid discipline in an investigative meeting. The arbitrator ordered Calgary Co-op to pay the worker $2,500 in damages for breach of his collective agreement right to a meeting but upheld the dismissal.
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