Town let officer go after told there was no timetable for his return to work
This instalment of You Make the Call features a police officer who went on leave because of a shoulder injury.
Gerry Gielen was a police officer for the small municipality of Ste. Anne, Man. The town only had three full-time and one half-time officers and Geilen was hired in April 2002. In 2004, Gielen began experiencing shoulder problems for which he received physiotherapy. The shoulder didn’t get any better, so he underwent surgery on June 1, 2005. Gielen went on leave to recover from the operation.
Gielen kept the police chief informed of his recovery and told him the condition was probably hereditary or degenerative. On Sept. 19, 2005, he submitted a medical evaluation from his doctor that stated he wasn’t able to perform the duties of his job. The doctor advised him his shoulder, which had limited motion and was weakened, wasn’t going to get any better but there could be some improvement within six to 12 months. Gielen suggested they should fill his position with the part-time officer until he could determine whether he could come back to work. The town council decided to postpone a decision on Geilen’s status until a December meeting to give him more time to get better.
On Dec. 14, 2005, Geilen told the chief his shoulder was still not well enough for him to work but maintained there could still be some improvement over time, though he had no timetable and his doctors had said it may never get better. Geilen informed the town council, who decided to terminate his employment. Though Geilen was no longer receiving short-term disability benefits, the council said his status as an employee prevented it from hiring a replacement full-time officer. The part-timer who was filling in had expressed his desire to return to part-time.
Geilen contested the termination and sued for wrongful dismissal, saying he had not been properly accommodated.
You Make the Call
Should Geilen have been accommodated by the town?
OR
Was the town entitled to fire Geilen in favour of a full-time replacement?
If you said the town was entitled to terminate Geilen’s employment, you’re right. The court found Geilen’s employment contract had a clause for termination with one month’s notice if either party was “unable to continue with the agreement at hand, based on personal and/or professional reasons.” The town’s decision to terminate Geilen’s employment was based on professional reasons and was in accordance with the termination clause, said the court.
The position of police officer required the ability to respond to situations in a physical manner, which Geilen was limited in doing because of his shoulder. The court also found the small size of the police department meant all officers needed to be fully able to perform their jobs and there were no alternate positions available, nor could the town afford to create a position with light duties.
The court also found the town had accommodated Geilen by allowing him time off to recover from his operation and delaying its decision on his status to give him more opportunity to heal. However, when there was no sign of his shoulder getting better and no timetable, along with the fill-in wanting to go back to part-time, the town couldn’t go any longer without a full-time officer who could perform all of his duties, which were rationally connected to his employment and bona fide job requirement. The court found the employment contract was frustrated and the town was free to terminate Geilen’s employment.
“Initially, when the employee was unable to fulfill his job requirements due to his shoulder problems, the employer granted him a three month leave to have surgery and recover,” said the court. “When the employee was not able to return after six and one-half months of leave, it was determined that further accommodation was not possible.”
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