Employer wanted more medical information and co-operation
An Ontario employer should have made more of an effort to engage with a worker on sick leave who rejected return-to-work options and didn’t provide additional medical information before he was terminated, the Ontario Superior Court of Justice has ruled.
Vimay Nagpal began working for IBM in the United Kingdom in 1988. In 1989, Nagpal moved to Canada and transferred to IBM Canada, reaching senior management status several years later.
In 2011, Nagpal successfully applied for a leadership position overseeing two new software projects. He started in the new position in January 2012, but soon had difficulties with the team, which he believed was due mainly to one particularly challenging employee. Nagpal tried to get support from his supervisor in dealing with the problem employee, but he didn’t feel that his supervisor had his back. He explained that these difficulties were causing him stress and mental health issues, but the supervisor didn’t follow up.
One year into his stint in the position — in January 2013 — Nagpal’s supervisor gave him a poor performance evaluation. On March 14, 2013, Nagpal called in sick due to stress. He remained off work for a few days and, on March 19, Nagpal told IBM that his doctor had recommended he take six weeks off.
IBM’s third-party insurance provider requested medical information — via short questionnaires — to support Nagpal’s absence for the purposes of short-term disability (STD) benefits. Nagpal provided a questionnaire from his psychiatrist indicating he was being treated for depression and anxiety and, in late June, the insurance provider informed him of the process to apply for long-term disability (LTD) benefits. By this point, Nagpal had been on STD leave for 16 weeks.
No return-to-work estimate
In early July, Nagpal provided another questionnaire from his psychologist with no estimate on when it would improve. The psychologist also said that “return to work is premature” and trying to come back too soon would “likely exacerbate symptoms and stall recovery.”
The insurance provider determined that the medical information didn’t support a conclusion that Nagpal’s condition was serious enough that he couldn’t work while receiving treatment. The provider informed Nagpal on July 19 that his STD benefits were being terminated, though he could appeal the decision if he had new or additional medical information.
Nagpal’s supervisor told Nagpal that he could either return to work or appeal the STD benefits decision, but if he chose the latter he would be on unpaid leave. He also told Nagpal that he had until Aug. 22 to provide documentation to support his appeal . If he didn't, he would have to return to work or IBM would consider him to have resigned.
Nagpal's doctors told him they couldn’t offer anything else to the insurance provider. Nagpal sought legal counsel, who contacted IBM to say that Nagpal couldn’t return to work for medical reasons and, if IBM proceeded indicated, it would be wrongful dismissal.
IBM didn’t respond and Nagpal’s STD benefits were terminated on July 30. One month later, Nagpal confirmed that he wouldn’t be appealing the decision.
IBM wrote to Nagpal on Sept. 10 with three options: attend a meeting to discuss his barriers to returning, discuss any workplace concerns with his supervisor or HR directly, or contact the employee assistance program about counselling and health coaching services. If he didn’t take any of these options by Sept. 27, IBM would consider Nagpal to have resigned from his employment.
Worker rejected options from employer
Nagpal’s legal counsel responded by saying none of the options was satisfactory and Nagpal’s health-care providers had indicated he wasn’t capable of returning to work. He also said Nagpal’s mental health had worsened because of IBM’s decision to cut off his salary and benefits and “the only satisfactory resolution” would be to either reinstate Nagpal’s disability benefits or pay him his salary until he was able to return.
IBM didn’t respond until Oct. 9, when the company informed Nagpal that it considered him to have abandoned his employment. Nagpal sued for wrongful dismissal. IBM countered that Nagpal abandoned his employment or, in the alternative, the employment contract was frustrated by Nagpal’s illness and absence.
The court stipulated that, for an employee’s resignation to be valid, it must be clear and unequivocal. Though IBM argued that Nagpal’s actions spoke louder than his words when he failed to provide additional medical information and didn’t respond to the options the company gave him, the court found that all along Nagpal made it clear that he had no intention of resigning or abandoning his employment. Nagpal’s communications through his legal counsel stated that he wasn’t able to return to work until his mental health improved and if IBM terminated the employment relationship it would be wrongful dismissal.
However, IBM didn’t respond to the communications and proceeded with its own plan. This was a failure to live up to the company’s responsibility to engage with Nagpal on his medical status and return-to-work plan. Nagpal didn’t appeal the decision to terminate his STD benefits, but this was because he was in a vulnerable position and wasn’t clear on what medical information was needed, said the court.
“IBM should have done more when Mr. Nagpal clearly expressed an intention to return to work when he was able to do so and said he could not do so because of his continuing illness, on the advice of his doctors,” the court said.
The court noted that Nagpal’s legal counsel should have better identified the gap in medical information or what was necessary for an appeal, but this didn’t mean Nagpal resigned or abandoned his employment.
The court determined that Nagpal’s actions, when viewed objectively by a reasonable person, clearly indicated that he wanted to remain employed by IBM. As for IBM’s alternative argument that the employment contract was frustrated, the court found this position wanting as well.
“Illness on its own is not a frustrating event, and one must have regard for the length of the illness in relation to the duration of the employment contract,” the court said, noting that Nagpal had 23 years of service with IBM and had been off for seven months with his mental health issues.
There was clear indication from Nagpal that he intended to return to work. IBM had limited medical evidence and didn’t make further inquiries into Nagpal’s condition, and the company had the ability to tolerate long-term absences — as evidenced by the fact it is a large company that offers LTD benefits, said the court.
The court found IBM wrongfully dismissed Nagpal and deferred determining the damages until a later date.
See Nagpal v. IBM Canada Ltd., 2019 ONSC 4547 (Ont. S.C.J.).
