Employment contract was frustrated but employer was required by collective agreement to give 24 hours notice of termination
An Alberta employer was entitled to terminate a worker who wasn’t expected to come back to work because of illness, but didn’t follow procedure outlined in the collective agreement, the Alberta Arbitration Board has ruled.
Sarah Munro was employed as a therapist with the Calgary Health Region (CHR) beginning in 1991. In 2000, she began having neurological problems such as dizziness, fatigue and nausea but continued to work while occasionally taking sick leave. In January 2002, she was diagnosed with multiple sclerosis (MS). The next month, CHR’s benefits provider approved her for short-term disability (STD) and she went on leave. The benefits provider developed a gradual return to work program for Munro, which involved her working three days per week with modified duties.
Munro returned to work in April 2002 and filed a claim for long-term disability (LTD) benefits for the time she missed, which was approved in July. She worked two to three days a week for the next two years.
On July 6, 2004, Munro’s MS flared up and she wasn’t able to continue working. After she sent a note from her doctor, the benefits provider re-established her LTD benefits. In October, the provider informed her it would continue the benefits beyond the 24-month initial assessment period.
In March 2005, there was some discussion that Munro would not be able to return to her job. However, CHR decided to obtain further medical information which Munro claimed would support an eventual return to work.
In October 2005, Munro’s doctor said she could not return to work “in the immediate future” and it was uncertain whether her condition would get any better. It was determined she would need a six-month period of remission before going back to work.
In late 2006, Munro suffered a relapse of her MS and the six-month remission period had to start over. CHR decided she could no longer work and its duty to accommodate had ended. It terminated Munro’s employment on March 16, 2007, according to the collective agreement, which allowed termination for excessive absenteeism and no reasonable prospect of a return to work.
The board found Munro’s circumstances met the collective agreement’s requirements for excessive absenteeism and there was no reasonable prospect of her coming back. However, the collective agreement also had a clause that required CHR to provide “at least 24 hours advance notice to an employee required to meet with the employer for the purposes of discussing and/or issuing discipline.” Since dismissal for non-culpable absenteeism could be considered discipline, CHR should have given Munro a day’s notice before terminating her, said the board.
“The one concern is the manner in which (Munro) was dismissed — without warning or notice, without a meeting, without any union representation. It was an insensitive, undignified way to treat a 16-year employee who had performed well through her employment,” said the board.
