Employee was careless for not following up with doctor, not dishonest: Arbitrator
An employee on medical leave who failed to provide required medical information by a set deadline should have been disciplined but not fired, the Ontario Court of Appeal has ruled.
The employee was a sales consultant for the Yellow Pages Group Company, a commercial search and directory company based in Verdun, Que, who was hired in 1989. On Jan. 12, 2009, the employee was diagnosed with sever hypertension and work-related stress, so he went on short-term disability (STD) leave.
Eight days later, the employee was assessed by his physician, who filled out a form providing information on the employee’s status, which the employee passed on to Yellow Pages. Yellow Pages then gave the form to Medisys, its benefits provider.
Medisys needed more information, so it sent a questionnaire to the employee’s doctor. However, the doctor didn’t fill it out and Medisys terminated the employee’s benefits on Jan. 23 due to insufficient medical evident. The provider also told the employee if he didn’t provide the additional information by March 3, his file would be closed.
Shortly after, Yellow Pages sent the employee a letter advising him that since his disability claim had been denied, he was required to return to work by Feb. 20. The employee contacted Yellow Pages and was told his employment would be terminated unless he either returned to work or provided the required medical evidence supporting his absence by March 3.
The employee visited his doctor on Feb. 25 and obtained a letter saying the employee would not be able to return to work. However, the letter wasn’t mailed until several days later and Yellow Pages didn’t receive it by the deadline. Yellow Pages considered the employee to have abandoned his position and informed the employee on March 5. The employee immediately obtained a copy of the letter and faxed it to the company.
However, this was too late for Yellow Pages, who considered the employment relationship over.
An arbitrator found that although termination was a severe penalty, the employee was given a deadline to provide the required information with clear consequences if he didn’t meet it. He should have kept Yellow Pages updated on his condition and followed up with his doctor, but he didn’t and should be held accountable, said the arbitrator.
The Ontario Divisional Court agreed with the arbitrator, finding the employee didn’t live up to the “most basic obligation of an employee,” which was to report to work or explain an absence. By leaving things in his doctor’s hands, he didn’t live up to that obligation, which was careless considering he was aware of the consequences. Dismissal was within the reasonable range of outcomes, said the court.
On the employee’s appeal, the Ontario Court of Appeal found the relevant conduct was limited to the employee’s failure to comply, without explanation, with the given deadline to provide requested medical information. Though it may have been careless not to check with his doctor to ensure the information was being provided to Yellow Pages and Medisys, there was no real dishonesty in the employee’s conduct, said the appeal court. Though some discipline was warranted, it was too harsh to terminate the employment of an employee with 20 years of “unblemished” service.
