‘These situations are always an exercise in patience - other employers might have been more frustrated’
A federal labour board has dismissed multiple complaints and grievances by a former federal employee who alleged that his termination and a request for a fit-to-work assessment were reprisals for invoking workplace safety provisions under the Canada Labour Code.
The worker was an information management analyst in the human resources branch of Employment and Social Development Canada (ESDC) in Toronto. On Dec. 22, 2019, he informed ESDC that he was exercising his right to refuse unsafe work under the code. His refusal was because of two encounters he had had with a co-worker outside of work a couple of days earlier.
According to the worker, on two separate occasions the co-worker told him on a subway train that “you’re being watched, and on the watch list.” The worker said that he had felt threatened by the co-worker’s comments, and he considered exposure to the co-worker a workplace danger.
ESDC told the worker he could work from home while it investigated the work refusal.
On Jan. 7, 2020, the worker emailed the co-worker and copied his manager. The email accused the co-worker of being a coward and stated that the next time the co-worker terrorized the worker in public, he would defend himself “by all [and] any means” and he was “not afraid of any more consequences.”
Fitness-to-work assessment
ESDC was concerned about the threatening nature of the email and told the worker that it would hold a disciplinary hearing in the future to address the matter. However, ESDC was concerned about the worker’s well-being and state of mind, along with the health and safety of the workplace, so it said it would delay any disciplinary hearing until he was assessed by a medical professional.
ESDC placed the worker on paid leave and suspended its investigation of his work refusal until the assessment. The next day, the worker made a complaint of reprisal based on an alleged threat of future disciplinary action.
On Jan. 21, ESDC asked the worker to undergo a fitness-to-work exam (FTWE) and sent a letter to the worker’s doctor.
The worker claimed that he was being subjected to discriminatory treatment and the request for a medical assessment was “in bad faith.”
In the meantime, ESDC completed the investigation into the worker’s work refusal and determined that there was no danger to the worker in the workplace.
Medical information not forthcoming
A new manager took over in June and the worker explained that his doctor didn’t want to rush him back to work and would prepare a report “on his own schedule.”
In September, the new manager followed up with the worker and offered to contact the worker’s doctor directly, but the worker said not to bother him and he had some medical appointments scheduled. She suggested that the FTWE could be done through Health Canada if his doctor took too long to do it.
ESDC eventually scheduled an appointment for an independent medical exam (IME), but the worker said he preferred either his doctor or Health Canada to evaluate him.
“Requesting [an FTWE] is always a bit of a daunting prospect, particularly at the outset of an interaction with an employee like this,” says Richard Johnson, a partner and co-founder at Ascent Employment Law in Vancouver. “Under the human rights framework, [employers] aren’t entitled to a diagnosis, and they’re not even entitled to a much information early on in the process - but as the employee’s off on a longer leave, they can start to get more information.”
Despite the potential risk early in the process, it was a good move for ESDC to request an FTWE, according to Johnson.
“In the circumstances, they clearly intimated that something wasn't right and there was something playing into [the worker’s] behavior,” he says. “So I think it was smart and appropriate.”
Paid leave to sick leave
In late October, ESDC told the worker that he would be removed from paid leave to sick leave, starting on Oct. 26. It gave the worker three choices – submit to an IME, meet with Health Canada, or wait for his doctor’s evaluation. The worker preferred one of the latter two.
ESDC was still open to an assessment by the worker’s doctor, but there was no timeline. The worker’s sick leave credits were exhausted and he went on unpaid sick leave.
In March 2021, ESDC advised the worker that it still had no medical information, which prevented it from making any appropriate accommodation to get him back to work. It gave the worker until April 6 to consent to an FTWE or provide an assessment by his doctor. If he didn’t, his absence would be considered unauthorized and “may lead to disciplinary and/or administrative measures up to and including termination of employment.”
The worker replied that he wouldn’t submit a psychiatric assessment because it was “a major invasion of my privacy rights.” He requested a termination letter so he could “fight this unjust termination.”
ESDC confirmed that it was not terminating the worker extended the deadline to April 30, but the worker made it clear that he wouldn’t consent to an IME.
Termination for cause
On June 9, after 17 months of trying to get information, ESDC terminated the worker’s employment for refusing to participate in the process to return him to work. The worker grieved his termination and claimed it was a reprisal for his work refusal and his refusal to submit to an FTWE.
The board found that asking the worker to work from home was a reasonable choice following the work refusal. There was no disciplinary intent and the focus was workplace safety, so it wasn’t prohibited by the code, said the board.
The board also found that the threat of a future disciplinary hearing was a potential reprisal under the code, as it was related to circumstances around the work refusal. However, ESDC had sufficient evidence to show that the potential disciplinary hearing was for the threatening email after ESDC had already responded to the work refusal, the board said, adding that ESDC took “necessary steps to assess workplace safety and the employee’s fitness.”
As for the requirement for a medical assessment, it was reasonable so ESDC could determine if the worker’s behaviour was culpable or non-culpable, the board said. It was also reasonable to postpone the work refusal investigation while the worker was on paid leave, which ESDC eventually completed, added the board.
Burden of proof
If an employee is acting inappropriately but has an active issue related to a protected human rights or safety ground, it’s important to act proportionately and keep the issues clearly separate, says Johnson.
“You can't allow an employee to be aggressive and acting inappropriately in the workplace, regardless of any accommodation or refusal to work,” he says. “[ESDC] was really careful in addressing the unacceptable behavior, documenting what was unacceptable about it and how they were going to treat it, which got them to the position where they could meet the burden of proof [of no reprisal].”
The board noted that the worker’s termination was made under s. 12(1)(e) of the Financial Administration Act, which permits non-disciplinary dismissal for cause. The worker argued that ESDC’s insistence on a psychiatric assessment was a violation of his rights and a pretext for reprisal, but the tribunal pointed to the prolonged 17-month effort to secure an FTWE through multiple channels - including the worker’s own physician and Health Canada. The worker’s continued refusal and the lack of any supporting medical documentation ultimately justified his dismissal, said the board, characterizing the worker’s actions as “an informed decision” to refuse the FTWE that was a condition for his return to work, and that left ESDC “with no choice but to terminate his employment.”
All of the worker’s complaints and grievances were dismissed.
A key element for ESDC was that they exercised a lot of patience during the process, says Johnson.
“These situations are always an exercise in patience - other employers might have been more frustrated by the process, perhaps not providing as much time,” he says. “But I think their patience and their documentation throughout the process really saved the day for them.”
In addition, if an employer thinks an employee may have a disability or a mental health issue, it shouldn’t be afraid to raise it and try to work with them to address it, says Johnson.
“I think a lot of people are afraid of having that conversation, but [ESDC] said, ‘We're noticing behavior from you, we'd like to get an FTWE,’ while parking any disciplinary concerns until they dealt with the underlying issue, it's a proportionate response,” he says. “And then applying a just cause dismissal only at the end, but keeping it separate from the employee’s refusal to work, they kept it clean and separate, and I think that saved the day.”
