'Those additional chances that the employee gets are so fundamental in adjudicators’ eyes, to see that the employer acted fairly and reasonably'
The Ontario Grievance Settlement Board has upheld the firing of a provincial government worker for job abandonment following a lengthy medical absence without sufficient medical information.
The employer’s consistent warnings of the consequences of not providing adequate information strengthened its position that the worker abandoned her job, says Joel Smith, a partner with Williams HR Law in the Toronto area.
“Employers should communicate with their employees and give them multiple opportunities to respond if they're not being responsive and, in doing so, make sure it's clear to the employee what the outcomes might be if they don't get back,” says Smith. “With somebody who's not attending work and not being responsive, let them know what they're doing wrong and they're off work on an unapproved leave, and the consequences being that there might be job abandonment, discipline, or termination.”
The worker was a part-time court clerk and registrar with the Court Services Division of the Ontario Ministry of the Attorney General in Toronto, hired in 2006.
Under the collective agreement, part-time employees were required to provide a medical certificate for more than five days’ absence. If a medical certificate wasn’t provided, the employee could be eligible for leave without pay, depending on the circumstances.
Lengthy absence
On March 16, 2020, the worker went off work and on July 17 the ministry requested medical information. The worker emailed a photograph of a medical note stating that she could return to work pending further assessment by an ear, nose, and throat specialist. She remained off work.
The worker’s manager informed her that she was expected to return to work pending the assessment. The worker was scheduled to work on Aug. 4, but she called in sick.
The ministry again sent a request for medical information so the worker could qualify for short-term sickness benefits, including a warning that an unapproved absence may lead to discipline up to and including dismissal or a declaration of abandonment – the Public Service of Ontario Act (PSOA) allowed the Public Service Commission to declare that any public servant absent without approval for two weeks or more abandoned their position.
The worker returned to work on Sept. 14 without providing any medical information. The ministry said that she needed medical clearance given how long she had been off and gave her until Oct. 21 to provide sufficient medical information clearing her for work. It also warned her that a continued absence without approved leave could lead to discipline including dismissal and a declaration of abandonment under the PSOA.
A worker’s poor attitude during a failed work refusal warranted discipline but was not job abandonment, a New Brunswick arbitrator ruled.
No information from worker
The deadline passed without anything from the worker, so the ministry reached out with letters on Nov. 20, Dec. 9, and Dec. 11 asking the worker to either return to work with medical clearance or provide sufficient medical information to explain her absence.
The worker responded on Dec. 21 with a medical note dated Oct. 12 from a hospital emergency department indicating that the worker should not walk or stand for prolonged periods, and she “needs to take time off work due to these restrictions.” The worker had gone to the hospital following a fall that injured her leg.
The ministry replied that the note wasn’t sufficient to justify her prolonged absence, as it felt that the restrictions could be accommodated in the workplace.
The worker provided a medical note on Dec. 31 stating that she had been disabled with various conditions from performing her duties and she had a reassessment scheduled on Jan. 14, 2021.
The worker didn’t provide any further information and, on April 21, the ministry sent another request for medical information by May 5, with another warning about discipline or dismissal.
A worker didn’t abandon her job when she failed to provide medical information supporting her long-term absence, but it was just cause for dismissal, the Nova Scotia Labour Board ruled.
Abandonment of position
The worker didn’t respond, so the ministry declared the worker to have abandoned her position in accordance with the PSOA and terminated her employment. The worker grieved, arguing that she didn’t contact the employer between January and May 2021 because of mental health issues. The union claimed that the worker was incapable of providing information because of a mental disability and the ministry should have accommodated her.
When an employee goes on long-term medical leave, employers should consistently seek sufficient medical information to support the absence, says Smith.
“[The ministry] was giving this employee, on a number of different occasions, opportunities to provide the information that it needed before ultimately relying on the position that she abandoned her employment,” he says. “That's generally the best practice that employers should do - get that information, make sure that the employee understands what the consequences are of not co-operating, and ensure that you have the right information before you take a position like that.”
The board noted that the worker was a public servant appointed by the Public Service Commission, she was absent from work without approval, and management declared that the worker had abandoned her position. That was sufficient under the PSOA and it had no authority to interfere with the dismissal “on any grounds other than incapacity,” said the board.
Smith notes that this case is unique due to the specific legislative provision in the PSOA that sets out when a public service employer can establish job abandonment.
“In most cases, there's no legislative provision that provides for job abandonment and the question [of abandonment] lies in the common law or the interpretation of a collective agreement for other types of unionized workers,” he says.
A worker who used long-term medical restrictions to avoid jobs he didn’t want to do abandoned his employment, an arbitrator found.
No evidence of psychological incapacity
The board found that, although the worker claimed that she was medically incapable of contacting the employer, she didn’t provide any evidence about her psychological condition.
The board also found that there was no evidence that the worker was incapable of responding by email or telephone, or that she couldn’t ask someone to speak on her behalf. She responded to communications in 2020 and even attended work in September to discuss her illness, and although she said that she was in “a dark place” in 2021, she provided no evidence of what her life was like on a daily basis or that she wasn’t otherwise supporting herself, said the board.
The board accepted that the worker had a number of physical and psychological problems during the pandemic, but it could not accept that the psychological problems were so severe that they interfered with her ability to respond to the employer’s requests for information. In addition, there was no way that the ministry could have concluded that the worker’s lack of communication was due to mental incapacitation, based on the limited doctor’s notes that had been provided – none of which indicated mental health issues, said the board.
“There was medical information showing a variety of other, not-as-serious physical injuries, but really nothing to support what the employee was saying, that she was incapable of getting back to the employer,” says Smith. “On top of that, there was lots of evidence that would suggest that she seemingly could communicate with other people - she may well have been grocery shopping and taking care of herself in other ways, presumably, because she led no evidence to say otherwise.”
An employer should have asked for more medical information before accusing a worker of job abandonment when the worker continued his side job, a BC court ruled.
Employer ready to accommodate
The board noted that, based on the information that the ministry had about the worker’s physical restrictions, it believed that it could accommodate her. This showed that it had turned its mind to accommodation, but the worker didn’t co-operate, said the board in dismissing the grievance.
The measured approach to the worker’s absence before eventually declaring abandonment was the right approach in most cases, says Smith.
“The biggest [mistake] that I see employers make is that they act too quickly to take the abandonment position – they ask for an employee to respond, the employee doesn't respond within a few days, and then that's it, they assert job abandonment,” he says. “I regularly advise my clients who are dealing with these situations where an employe is not responsive, to give that employee a few warnings that you need to hear back from them, and if you don't hear back from them, let them know that that's unacceptable.
“And let them know the consequences if they continue to fail to get back to you, because those additional chances that the employee gets are so fundamental in adjudicators’ eyes, to see that the employer acted fairly and reasonably before ultimately taking that abandonment position.”
