Employer wanted proof blackout was from medical condition, not 'lifestyle choices'
This instalment of You Make the Call features a truck driver with a medical condition who was terminated following what the employer deemed a preventable accident.
Derek McKirdy was a long-haul truck driver for Vedder Transport, a company that transported bulk food grade products based in Abbotsford, B.C. During McKirdy’s tenure with Vedder since he was hired in late 2007, there were several accidents causing damage which the company considered preventable. McKirdy was injured in one of the accidents to the point where he was off work for several weeks on workers’ compensation, and he received a two-day suspension following another, as well as a letter of discipline that stated any further incidents would result in additional discipline up to and including dismissal.
On Sept. 2, 2011, McKirdy was on duty driving a truck and when he went off the road, rolling both the truck and its trailer on the highway median. McKirdy was injured and the company truck and trailer were both complete losses.
Vedder reviewed the incident and concluded it was preventable. During the investigation, McKirdy said he had blacked out just before he went off the road. After a neurologist saw McKirdy as part of his workers’ compensation evaluation, the province of Alberta determined a medical condition might have caused the accident and suspended his licence.
The neurologist indicated on Jan. 4, 2012, that McKirdy was fit for work “at a heavy level” but was subject to restrictions, including he could not drive until six months after his blackout and certain heavy vehicles until one year after his blackout. After a year, the province would have to determine if his licence could be reinstated. The Alberta Workers’ Compensation Board provided a report on Jan. 18 outlining the neurologist's assessment.
Vedder requested McKirdy provide confirmation that the root cause of the accident was due to a medical condition — rather than not maintaining a healthy lifestyle — from medical professionals before he would be approved to return to work, as it was concerned with the risk of allowing him to get behind the wheel again if he could experience another blackout.
McKirdy provided a doctor’s report in April 2012 stating the blackout that caused the accident was likely the result of an interaction between McKirdy’s new anti-depressant medication and caffeine. As he was no longer on the medication and there had been no other blackouts, the doctor said McKirdy was safe to drive normal vehicles and could reapply for his truck licence as soon as the minimum suspension had expired.
The company wasn’t satisfied with the documentation McKirdy provided and, concerned for the safety of McKirdy, the public and the protection of its equipment, it terminated McKirdy’s employment on May 28, 2012.
McKirdy filed a complaint of unjust dismissal under the Canada Labour Code.
You Make the call
Was the dismissal unjust?
OR
Were there grounds for dismissal?
If you said the dismissal was unjust, you’re correct. The adjudicator noted that Vedder likely took an approach that was primarily concerned with the safety of both McKirdy and the public, but this may have clouded its assessment of the circumstances. The workers’ compensation reports and doctor’s report made it clear that McKirdy was fit for work “at a heavy level, subject to temporary restrictions” in January 2012, and in April 2012 the doctor’s report indicated the conditions causing the blackout were unlikely to be repeated, said the arbitrator.
“After considering the evidence, I am of the view that at the time (McKirdy) was terminated by Vedder’s letter of May 28, 2012, (McKirdy) had provided Vedder with adequate and acceptable medical confirmation of his condition and fitness to drive, together with satisfactory and sufficient verification that the root cause of the Sept. 2 accident was not related to maintaining a healthy lifestyle but due to a medical condition,” said the adjudicator.
McKirdy didn’t ask for reinstatement as a remedy, and the adjudicator granted his requested for eight days’ severance pay, two weeks’ pay in lieu of notice, lost earnings from the time of his dismissal until he found a new position five months later, and compensation for loss of personal items and equipment that weren’t returned to him following his dismissal. The total award was $8,068, plus an order for Vedder to “remove all reference or conclusion in all records” of McKirdy’s employment that the accident was preventable.
For more information see:
