One-day trial for return to work confirmed ongoing performance issues were still present
An employee who claimed discrimination after being fired while on medical leave has had her complaint dismissed by the British Columbia Human Rights Tribunal.
In the fall of 2014, Charlotte Whitmore applied for the position of medical office assistant for a doctor who had been using the assistant of another doctor renting office space from him. When the other doctor decided to move his practice and take the existing assistant with him, the original doctor had an opening.
Whitmore was hired on Oct. 22, 2014, with the existing assistant agreeing to train her for two months before leaving, as Whitmore had just completed medical office assistant training at college and hadn’t done the job before. The position included patient scheduling, patient reception, billing, maintaining the electronic medical record system (Plexia), dealing with operational issues, and general administrative support. The job also involved co-ordinating with other clinics where the doctor worked outside of his primary office.
In early December, Whitmore completed her training satisfactorily and the doctor officially offered her the medical office assistant position with a pay increase. However, over time, Whitmore had some issues about which the doctor was concerned, including that she had difficulty scheduling patients and billing, she was slow learning new tasks, and she didn’t follow private billing procedures. She also failed to advise the doctor that his waitlist of patients had diminished, so he wasn’t able to take action to increase the number of patients and avoid a drop in his income.
The doctor met with Whitmore to discuss these issues on March 5, 2015, though Whitmore denied any performance concerns were raised.
On July 20, 2015, Whitmore asked the doctor for a pay raise. The doctor said she was being paid more than they initially agreed upon and he still had concerns over her performance, so there would be no raise at that time.
The doctor attended a meeting at the University of British Columbia on Oct. 2, 2015, where he told other physicians he was fully booked with referral patients. However, when he returned from the meeting, he checked his waitlist and found only four patients on it. He was surprised, as he normally had a waitlist of more than 40.
The doctor asked Whitmore about the waitlist a couple of weeks later, and she responded by saying she hadn’t wanted to tell him for fear of upsetting him. She later testified that his income and bookings had been down for months and he had reduced his outside clinic work, leading to fewer referrals. The doctor considered terminating Whitmore’s employment, but he didn’t want to recruit and train a new employee before Christmas.
Since he hadn’t been able to take pre-emptive steps to improve his waitlist situation, the doctor made some adjustments and travelled to more outlying clinics, hoping Whitmore’s performance would improve.
Medical leave
In January 2016, Whitmore had a medical issue that required corrective surgery. She went on medical leave and the doctor assured her that her job would still be there when she was able to return to work. While she was on leave, the doctor continued to pay her full salary for a month, when he suggested she apply for employment insurance (EI) benefits. He then arranged a supplemental benefits plan that topped up her EI benefit to 92 per cent of her pre-illness income for 15 weeks. In mid-February, Whitmore emailed the doctor to say she missed work and would return as soon as she was “whole.” The doctor suggested she come back initially for “just a day a week to test the waters” when she was ready.
Whitmore tried to return to work on March 2 but was unsuccessful. She was worried that her job was in danger and she had run out of medication, so she asked the doctor for a repeat prescription. She was sore and felt “wiped out” after being in the office for a short time. She tried to book some appointments, but some were done incorrectly and the nurse had to reschedule them.
The doctor hired a temporary medical office assistant in late March for one month, with a possible extension to June if necessary. Shortly thereafter, on April 1, Whitmore came to the office in her work clothes and said she was ready to work. The doctor agreed to a one-day assessment, but it became apparent she still wasn’t ready to return.
The doctor subsequently asked Whitmore for a letter from her surgeon and primary care physician to determine when she was fit to return to work.
Shortly after Whitmore’s second attempt to return to work, the temporary assistant discovered more than 300 unsent faxes in the fax machine that Whitmore had failed to send. Most of them had incorrect numbers or characters entered and some had encountered a busy signal. The unsent faxes included consultation reports about patient diagnoses and special medication requests. The doctor was concerned as patient safety had been put at risk because the faxes hadn't been sent.
Whitmore met with the doctor on April 15 to discuss the fax issue and concerns the doctor had with billing, lost referrals, and the diminished waiting list. Whitmore denied there was an issue with billings, said the waitlist would turn around, and claimed the unsent faxes were the result of a technical issue. The doctor was also able to confirm Whitmore was medically cleared to return to work.
Whitmore returned to work on April 18 for a one-day trial and was fine physically. However, the doctor noticed she spent a lot of time trying to figure out the fax program and on the phone with technical support for the Plexia medical record system. She also prepared an invoice for a medical legal report to send with the report, contrary to the doctor’s instruction that she obtain payment before sending the report. The doctor later found the invoice tucked in her desk drawer instead of a folder for unpaid invoices.
The next day, the doctor asked his nurse how she felt the day went with Whitmore, and the nurse replied that is was “just like before she got sick.” The nurse also said she had tried to teach Whitmore the referral and booking process for a new clinic the doctor worked at two days per month, but she appeared disinterested.
The doctor decided he couldn’t trust Whitmore to do her job effectively or with important tasks anymore. Whitmore was still officially on medical leave, so he emailed and texted her that she was being terminated.
Whitmore filed a human rights complaint accusing the doctor of discrimination based on disability, since she was fired while on medical leave and the doctor tried to get her to return before she was able. The doctor applied to have the complaint dismissed on the basis it had no reasonable prospect of succeeding.
The tribunal dismissed the complaint, finding that Whitmore was terminated because of numerous performance issues, not her absence due to disability. Evidence from the doctor, the temporary assistant, and technical support provided no reason the faxes hadn’t been sent other than operator error and Whitmore’s blaming of technical issues was unsupported “speculation and conjecture,” said the tribunal.
There was also no evidence the doctor tried to get Whitmore to return early, as their communication and his EI supplement indicated support for her to take sufficient time. In fact, he cautioned her against returning too soon and wanted medical clearance before she came back.
The tribunal also found the doctor had concerns over Whitmore’s performance for most of the time she was employed with him, so it was nothing new by the time she went on medical leave.
“I find that (Whitmore’s) assertion that her disability was a factor in her dismissal does not rise above the level of speculation or conjecture,” said the tribunal. “In the circumstances of this case, timing alone is insufficient in my view to raise (Whitmore’s) complaint above conjecture and speculation.”
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