Employer grew frustrated with employee's refusal to take new positions to accommodate disability
This instalment of You Make the Call features a frequently-ill employee who was fired for excessive absenteeism.
Fern Jensen was a toxic substances evaluator for Environment Canada (EC) in Edmonton who was frequently absent from work until 2003, when she took a month off due to medical issues and returned to work on July 7. The next day, EC requested a fitness to work evaluation to determine any medical restrictions she might need to have accommodated.
The evaluation resulted in a determination that Jensen had no medical restrictions but in the short term she would be absent slightly more than normal. Jensen worked without any significant medical problems until June 15, 2004, when she went on unpaid sick leave and later disability insurance.
By the end of 2004, Jensen had not returned to work and EC asked for another fitness to work evaluation. Jensen responded by making a harassment complaint against her supervisor. Further requests for information and expected return to work went unanswered until late March 2005, when Jensen again said she was harassed. She said she had been verbally abused by her supervisor for years, which had caused her anxiety and fuelled her dependence on alcohol. A medical evaluation determined her work environment was harmful to her health. EC suggested she either file a grievance or make a complaint.
By December 2005, Jensen provided a medical not that she was improving but still not well enough to work. Two months later, EC received a medical note saying she had been instructed not to return to her previous position.
EC offered Jensen a new position in the same building but in a different unit, but Jensen said could not work in the same building as her supervisor. In July 2006, EC offered her a position in a different building a few blocks away, starting on July 18. However, she didn’t report for work and didn’t contact EC. Jensen was then told if she didn’t contact EC by July 25, it would terminate her employment.
After another deadline passed with no response from Jensen, EC terminated her on Aug. 15, 2006, for failing to report to work or provide a reason for not reporting.
You Make the Call
Was Environment Canada entitled to fire Jensen for absenteeism and a lack of co-operation in accommodation?
OR
Was Jensen wrongfully dismissed?
If you said EC was entitled to fire Jensen, you’re right. The Canada Public Service Labour Relations Board found EC acted reasonably during the process of trying to determine Jensen’s situation. When it learned Jensen needed to work at a different position because of the problems stemming from her work environment, it worked to find her more than one in different locations. The board found EC gave Jensen clear deadlines to respond and even extended them on a couple of occasions. However, Jensen didn’t report for those positions and didn’t inform EC why by the deadlines.
The board also found EC fulfilled its obligation to accommodate Jensen. The disability that required accommodation was her anxiety disorder and depression that was from her old work environment and harassment from her old supervisor. EC followed the doctor’s orders and found her positions in new work environments under different supervisors. According to the medical notes, Jensen’s alcohol dependence was under control and not disabling.
Jensen argued EC should have consulted more with her on a suitable position, but the board found consultation was not necessary for proper accommodation. The fact it found more than one position and gave her several extended deadlines meant EC accommodated Jensen several times, but she didn’t co-operate. With her continued absence from work without explanation and refusals to accept its accommodation efforts, EC was within its rights to terminate Jensen’s employment, said the board. See Jensen v. Canada (Deputy Head — Department of the Environment), 2009 CarswellNat 4310 (Can. Pub. Service Lab. Rel. Bd.).
