'You always have to have a good-faith intention' to get employees on leave back to work: lawyer
“You always have to have a good-faith intention [with employees] - whether it's getting them back to work or performance management, the motivation always has to be to improve performance and get them to an acceptable level, not to get them out the door.”
So says Rishi Bandhu, a labour and employment lawyer at Bandhu Professional Law Corporation in Oakville, Ont., after an arbitrator determined that a Canada Post worker was not dismissed when she didn’t co-operate in return-to-work efforts or a harassment investigation.
The worker was hired by Canada Post in 2014 on a temporary basis and became a full-time postal clerk at the South Central Letter Processing Plant in Toronto in 2016, assigned to the Mech section. However, she didn’t actually work in the Mech section because she was accommodated with less physical duties due to injury claims.
Over the first four years of her employment, the worker - who was Black - filed about 20 internal complaints alleging racism and harassment. In 2018, an investigator found that all but three of the allegations were unfounded, one was “partially well founded,” but not due to racism or other improper motives, and two were inconclusive.
The investigator’s report also found that many of the worker’s complaints were vexatious and defamatory, and that the worker abused the complaint process.
Altercation with managers
On Feb. 14, 2020, the shift superintendent and operations manager told the worker that her accommodation was ending and she would return to her assigned duties in the Mech section on a gradual basis. The worker had not supplied any medical information to Canada Post’s third-party insurance provider supporting continued accommodation.
The worker reported for her next shift on Feb. 18. However, she expected to continue working in her accommodated role as she hadn’t been told that training had been arranged. When she exited the locker room, the superintendent and operations manager were waiting for her.
The worker didn’t want to speak with them without a union steward present, so she left to find one. The steward was in a meeting and asked her to wait 15 minutes, so she returned to the locker room. When she came out, the two managers were still standing there.
The operations manager put out his arms to block her from going to the area where she had been working and she came into contact with him. A male security guard intervened and escorted her to the lobby.
The worker felt that the actions of the managers and guard were “demeaning, nasty, and arrogant.” She called the police to report an assault. The police took statements and viewed a security camera video, after which they advised that no charges would be laid.
The Ontario Grievance Settlement Board upheld the firing of a provincial government worker for job abandonment following a 14-month medical absence.
The security video showed the operations manager extending his arms at shoulder height and the worker’s shoulder making brief contact with his arm. The manager stepped back and the worker briefly touched his arm with her hand. There appeared to be no physical force and everyone was calm.
The worker wrote a letter to the president of Canada Post saying that she was “physically aggressed, assaulted and brutally violated” by the superintendent. She also said that she was “abusively bullied out of work.”
The worker filed a grievance and a complaint under Canada Post’s workplace violence policy and she didn’t return to work.
The worker filed a workers compensation claim, but it was denied. The insurer contacted her for updated medical information, but she didn’t respond. She felt that the insurer was not impartial and was a tool of Canada Post to get her back to work.
She supplied three brief doctor’s notes between February and Nov. 24 saying that she was unfit and unable to work due to “anxiety and insomnia,” but she didn’t respond to requests to provide the insurer with information to support a return-to-work plan or accommodation.
A request for more medical information that delayed a worker’s return to work was not discrimination but necessary to determine accommodation.
Worker didn’t co-operate with investigation
Canada Post investigated the workplace violence and discrimination complaints, but the worker refused to co-operate, personally attacking the manager investigating the violence complaint.
The worker went to Africa in October 2020 for one month without informing Canada Post, which continued to try to contact her.
Canada Post sent letters with instructions to address her absence and a warning that she could be dismissed if she didn’t provide medical information supporting her absence. Several phone calls went unanswered, so on Feb. 9, 2021, the worker’s employment was terminated for “ongoing unauthorized absence from work.”
The union filed another grievance, arguing that the worker was medically unfit for work due to the trauma from the incident and she did not abandon her job.
The arbitrator noted that the worker did not provide medical information that she could not start the training for the Mech department, so it was reasonable to expect her to start training on the day of the incident. The worker was entitled to disagree with the direction to attend the training, but not to disobey it, said the arbitrator.
A public servant was unsuccessful in job competitions because of her lack of qualifications, not race, according to the Ontario Grievance Settlement Board.
Risk of physical contact
The arbitrator found that the operations manager put himself in a risky situation by physically blocking the worker, but the evidence was that there was only incidental physical contact – which the worker “greatly exaggerated.”
Given the video surveillance footage and the manager’s statements, there was no harassment, intimidation, or physical abuse of the worker, the arbitrator said.
“Although this was a win for the employer, the arbitrator was still critical of the supervisors for physically blocking her from entering the work area,” says Bandhu. “The direction was appropriate and [the worker] needed to obey that, but the message from the arbitrator was, don't put yourself in a position where you're asking for a physical altercation with the employee.”
The arbitrator also found that the worker was not subject to discrimination, as there was no evidence that any adverse treatment was related to her race. It wasn’t enough just to have a protected ground and experience adverse treatment – there had to be a connection between them, said the arbitrator in dismissing the discrimination and harassment grievance.
“We struggle with these types of cases, where people say, ‘I'm a minority, I'm constantly suffering adverse consequences by my employer,’” he says. “But then there's no link between those two things - that's the biggest hurdle that these employees have.”
Discrimination cases are hard to prove if the employer proves another legitimate reason for its actions, says an employment lawyer.
Abandonment of position
As for the end of the worker’s employment, the arbitrator noted that the collective agreement stated that seniority would be forfeited and a break of service will have occurred for an abandonment of position. The worker provided no medical information to support her absence after Nov. 24, despite requests from Canada Post. Instead, she sent “vitriolic and personally insulting letters” to Canada Post executives, said the arbitrator.
The arbitrator found that the worker consciously decided to not comply with Canada Post’s direction to either return to work or provide medical support for her absence. This was an abandonment of her position under the collective agreement, the arbitrator said.
“What the employee was providing was insufficient, so they just continued to follow up,” says Bandhu. “There has to be some degree of detail in these notes to allow the employer to make a decision - the employee’s obligation is to co-operate throughout that process, respond to requests, and then provide detailed information, which this employee wasn't doing.”
The arbitrator determined that it was reasonable for Canada Post to conclude that the worker abandoned her position and didn’t intend to return to work, thereby terminating her employment. The termination grievance was also dismissed.
Bandhu says that employers need to have a lot of patience when dealing with an employee on a medical leave of absence, particularly if the employee isn’t co-operative.
“It’s frustrating and you need dedicated resources attached to it, but when someone is not co-operative or responsive, the only thing you can do is repeatedly write to them and request their co-operation,” says Bandhu. “That's what the key is here - if the employer is engaged in a genuine effort to get this employee back to work and not to terminate their employment.”
“That's where most employers fail in this process because their motivation is not to get the employee back to work, but to terminate their employment,” he adds. “And that's where they're going to mess up, lose patience, and jump the gun.”