'If you're going to say an employee was unreasonable, then you have to demonstrate you are reasonable'
“It’s a misconception that an employer has to almost obey what an employee wishes or wants when [the employee] is disabled,” says Sharaf Sultan, principal of Sultan Lawyers in Toronto. “In reality, an employer's obligation is to attempt to maintain employment, to provide enough work for that person, and achieve the same income level as they did before.”
Sultan’s words come after a federal adjudicator dismissed an unjust dismissal and discrimination complaint against an employer that terminated an employee following a failed and adversarial accommodation process.
Worker needed ‘micro-breaks’
The 63-year-old worker was a cable technician for Intek Communications, a company based in Markham, Ont., that performs telephone, internet, and television maintenance and installation under contract to Rogers Communications, since 2007.
In 2013, the worker suffered a workplace injury that resulted in a successful workers’ compensation claim. He returned to his regular duties within a month and his claim was closed.
The worker re-injured his ankle in January 2016, for which he filed another workers’ compensation claim. Intek accommodated him with a warehouse assistant position, which involved walking around the warehouse to retrieve equipment and supplies for cable technicians, along with desk work.
In July 2015, the worker completed a functional abilities evaluation (FAE) that suggested that he take “micro-breaks” throughout the day as needed.
In June 2017, the worker received a written warning for abusing his mini-break privileges and having a verbal altercation with a co-worker. The same day, the worker provided a workers’ compensation functional abilities form (FAF) signed by his family doctor. The doctor stated that the FAF was based on the worker’s statement that his pain was worse, suggesting another six months of modified duties with breaks of five minutes for every 20 minutes worked.
In February 2018, the worker provided a schedule of breaks that totaled two hours and 15 minutes of time off during an eight-hour shift. Intek agreed to this schedule on a temporary basis while it assessed things, although it was concerned with how disruptive the break schedule would be – cable technicians accessing the warehouse were paid on a piecework basis, so their time was valuable.
Intek requested further medical information to support continued accommodation of the worker, particularly a prognosis on how long the restrictions were expected to last.
In March 2018, the worker’s doctor suggested the five-minute break for every 20 minutes of working time should last at least five years. Intek requested the doctor’s thoughts on possible alternative accommodation strategies that would meet its operational requirements and the doctor replied that her correspondence was based on the worker’s 2015 FAE.
Request for IME
In July, Intek asked the worker to participate in an independent medical examination (IME). The worker provided a functional abilities form (FAF), but Intek said that would only be applicable to an active workers’ compensation claim.
Intek reiterated the request, but the worker sent a message through his lawyer that he would take any questions to his doctor as he didn’t think an IME was necessary.
Sultan says that employers should normally rely on information from their employee’s medical providers, but an IME may be appropriate if they don’t have enough information to proceed with accommodation.
“If they're versed in the law, an employer will usually only request [an IME] once they get to a point where they feel that they have, despite their best efforts, made no inroads in terms of determining [accommodation needs],” says Sultan. “There's no problem with an employee pushing back against an IME, but the issue in this case was that the employee was not co-operating throughout the process, so it makes an IME more reasonable.”
In April 2019, Intek told the worker that the temporary accommodation couldn’t continue and he shouldn’t report to work until he provided the medical information on accommodation strategies that it had requested.
Intek and the worker’s lawyer communicated back and forth, with the worker scheduling his own IME but the company not agreeing to it. Intek scheduled an IME for June 4 and told the worker he was required to attend, but the worker refused.
Termination of employment
Intek terminated the worker’s employment on June 17 for insubordination from failing to attend a mandatory IME or participating in the accommodation process. The worker filed a complaint of unjust dismissal and disability discrimination.
The adjudicator found that the worker took “an uncompromising, demanding, and strident approach” to the accommodation process and maintained that his own doctor’s opinion on his breaks should prevail, even though the doctor’s perspective was based on “an out-of-date” 2015 FAE. This gave Intek the right to seek another qualified evaluation of the worker’s capabilities and restrictions, said the adjudicator.
The adjudicator also noted that the worker relied on his legal advice that the information he had provided to Intek was sufficient and that he did nothing wrong, which contributed to a breakdown in the employment relationship.
The onus is on the employee to prove a case of prima facie discrimination when such a complaint is made, but in this case the worker completely failed to do so because of his antagonistic approach to the process, says Sultan.
“Because the employee did not, in the opinion of the adjudicator, co-operate sufficiently – or at least demonstrate that he was making an effort – they weren't prepared to even entertain whether or not the employer had discriminated because the employer never actually had a chance to accommodate,” he says. “I think the mistake that the employee made here was to be obstructionist rather than responding in a manner that demonstrated a desire to be accommodated and to work with the employer.”
Failure to co-operate
The adjudicator also found that the worker failed to discharge his onus of proving discrimination, as the evidence indicated that Intek was willing to continue accommodation efforts and it was the worker’s “repeated and unjustifiable refusal to satisfy his duty to co-operate” that broke down the accommodation process.
An employee’s right to workplace accommodation is “not absolute or unfettered,” as the jurisprudence has established, said the adjudicator, noting that employers are entitled to inquire about an employee’s fitness to perform work and the nature of their accommodation needs.
In addition, the employer had a “legitimate need” for medical information that assisted in determining accommodation options, said the adjudicator. The June 2017 FAF was not based on a medical examination and wasn’t consistent with the 2015 FAE, the adjudicator added.
The worker tried to assert his privacy interests, but those interests aren’t absolute when it comes to accommodation, says Sultan.
Employer’s right to information
“An employer has the right to have sufficient information to determine whether the employee requires accommodation and what kind of accommodation they may be able to offer,” he says. “If it's determined that it is difficult to assess that without having private [medical] information, then the balance would lean in favour of providing [it].”
“The idea that [an employee] doesn’t have to provide anything because it's confidential is not a reasonable response under the law, if it doesn't allow the employer to have sufficient information to accommodate,” Sultan adds.
The adjudicator determined that Intek had inadequate medical information to support the worker’s demand for so much break time that could negatively affect Intek’s operations, and the company was entitled to request an IME.
The adjudicator found that the worker’s refusal to attend the IME was unreasonable and provided just cause for termination. The evidence showed that Intek was willing to provide accommodation, as it had already been doing for years, but the worker didn’t co-operate and instead took an antagonistic approach that blamed the employer, said the adjudicator in dismissing the worker’s complaint.
Sultan stresses that employers need to be well-organized and consistent in order to put themselves in the position of terminating an employee who doesn’t co-operate in the accommodation process.
“It's very difficult to determine, as an employer, when is enough to proceed with a termination for someone who has a disability, even if you don't feel that there's sufficient information to determine accommodation,” says Sultan. “So if you want to proceed with a termination because you are frustrated because the employee is just being obstructionist and essentially trying to dictate the process, then my suggestion is to come up with a plan to manage that – provide expectations, follow through, and then dismiss.”
“Otherwise, the risk that you run is that you're providing too many opportunities for the employee to undermine or discredit the employer’s efforts,” Sultan adds. “If you're going to say that an employee was unreasonable, then almost by definition you have to demonstrate you are reasonable.”
It’s not easy for employers to follow through such a process, given the demand it could have on time resources, says Sultan.
See Wan and Intek Communications Inc., Re, 2022 CarswellNat 4457.
