Doctor’s note prescribing 'no overtime' was obtained due to labour tensions, not employee’s health: 3-day suspension imposed

Doctor relied on 'subjective statements' but dismissal was too harsh for long-term employee

An employee who obtained a doctor’s note to justify his desire not to work overtime during a labour dispute, deserved a three-day suspension, an arbitrator has held.

After the employer announced that it would be reducing the amount of time off accrued by certain employees, employees responded in protest by dramatically reducing the amount of overtime worked. The employer then sought and obtained an order from the British Columbia Labour Relations Board, ending the employees’ overtime ban because it was effectively an unlawful work stoppage.

The day after the employer informed employees of the scheduling that would result from the court order, the employee saw a doctor who issued a note recommending that the employee not work overtime. The employee had a history of working a significant amount of overtime up until he obtained that doctor’s note. The employer dismissed the employee for relying on the doctor’s note to permit him to participate in an unlawful work stoppage (overtime ban). The employer argued that the employee had, by obtaining the doctor’s note, “disingenuously sought to get around the” Labour Relations Board order.

The arbitrator decided that the employee had indeed sought to avoid working overtime due to labour relations tensions, and it was his subjective statements regarding his health that the doctor relied upon in writing the “no overtime” note. However, he had been sincerely feeling stress at work. He had relatively long service of about fifteen years, and good performance evaluations. As such, dismissal was excessive. The arbitrator instead imposed a three-day suspension.

Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog

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