Independent medical review refused

Employer’s termination of disability benefits did not constitute constructive dismissal

William McBride had worked for SNC-Lavalin Inc. (and its predecessor Fenco) since 1980. He worked as a surveyor and as a draftsman engaged in producing highway drawings. He reported to Mr. Green with whom he had few disputes. However in September 1997 Robert Kieley became Mr. McBride’s new manager and problems ensued, culminating in Mr. McBride taking stress leave in February 1999.

Prior to his departure, Mr. Green renovated Mr. McBride’s workstation and arranged it in a way that Mr. McBride considered inconvenient. Mr. Green also removed the phone from Mr. McBride’s desk, forcing Mr. McBride to share a phone with another technician. When he complained, he was told that this was a cost-saving measure. When Mr. Kieley arrived, Mr. McBride complained about both of these issues but to no avail.

In January 1998 Mr. McBride had a salary review, during which he was told that he would not be receiving a salary increase. Mr. McBride felt that he should be reclassified. It was agreed that the matter would be reviewed again in June. However in June he was told that he was not being reclassified and he would not get a raise.

In June 1998 Mr. McBride learned that the Department of Transportation was paying a meal allowance of $27.50 per day to its employees while SNC-Lavalin only paid $25 per day. He raised this issue with Mr. Kieley. Mr. Kieley’s response was negative. Words were exchange over this issue. Mr. McBride implied that SNC-Lavalin was getting $27.50 and was “skimming” the extra $2.50 from the employees. Mr. McBride stormed out and told a co-worker, Susan MacKenzie, that he wanted to be notified if the Department of Transportation was being billed $27.50 instead of the $25 being paid to him.

Later that same day, Mr. McBride left the building, moved the rented company van he was driving to a parking lot outside a tavern where his co-workers frequently had drinks on Fridays. Mr. Kieley saw Mr. McBride move the truck and later saw a second company van parked in the same lot.

As a result, the following Monday Mr. Kieley sent an e-mail to all staff stating that he did not “want to see any of these rented vehicles full of company equipment parked outside any drinking or other similar establishments.” Mr. McBride interpreted this e-mail as being directed at him and sent a responding e-mail copying all the staff.

In September 1998 Mr. Kieley told Mr. McBride to confirm vacation days with him which Mr. McBride felt was unfair as he believed that other employees were not required to do this.

Finally in January 1999 Mr. McBride had another annual salary review and was again told that he would not receive a raise.

Mr. McBride then went on stress leave for three weeks beginning Feb. 10, 1999, with his salary paid in full. On March 2, 1999, the company stopped paying his salary as Mr. McBride refused to agree to an independent medical review. No agreement was ever reached between the parties on this issue and Mr. McBride did not return to work.

Mr. McBride argued that SNC-Lavalin constructively dismissed him on Feb. 10, 1999, by creating a “hostile work environment.” Alternatively he argued that he was actually dismissed on March 2, 1999, when his short-term benefits were discontinued.

The Court considered the events that Mr. McBride relied on as evidence of a “hostile work environment” and held that Mr. McBride was making mountains out of molehills. Each of the events described were relatively minor until they were blown out of proportion by the actions of Mr. McBride.

There are examples of cases where the Courts have found that an employer has created a work environment which is so intolerable that the employee is justified in leaving and treating the employer’s conduct as a constructive dismissal. However this was not such a case. The conduct of SNC-Lavalin viewed objectively did not amount to constructive dismissal of Mr. McBride.

On the issue of actual dismissal relating to March 2, 1999, the Court held that the employer was not wrong in refusing to continue the short-term payments without further independent medical evidence. Even if the employer was wrong in its refusal to continue payments, such a refusal did not constitute a dismissal of Mr. McBride.

The action against SNC-Lavalin was dismissed.

For more information:

McBride v. SNC-Lavalin Inc., 2002 NBQB 6.

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