Parking officer’s space vacant too often

Officer had medical issues but didn't give employer much medical information

This instalment of You Make the Call features an employee with serious attendance issues.

The City of Ottawa had an attendance management program to help employees with poor attendance solve their problems and discipline them if they didn’t improve. A parking control officer with 19 years of service had been identified as having a problem after missing an average of 53 days per year in the last 10 years with the city.

The officer explained his absences were often due to irritable bowel syndrome (IBS), so the city developed an accommodation plan in which he could miss one or two days per month when his IBS flared up. However, the officer continued to miss more than that — in fact, his level of absenteeism increased.

The city decided the officer’s absenteeism was excessive and interfering with his ability to do his job. In addition, the only medical information it had received from the officer’s doctor indicated his prognosis was good and he just needed regular access to a washroom. Since the officer was unable to do his job properly because he was absent so much, the city terminated his employment on Nov. 13, 2008. The officer mentioned he had been referred to a specialist, but he didn’t indicate what it was for — the specialist was a mental health specialist.

The union grieved the dismissal, arguing the officer was a good employee for several years and, following his termination, he was diagnosed with chronic anxiety and depression, which aggravated his IBS. It claimed most of the physical symptoms the officer suffered from were a product of his mental disorder. The union argued the city should have been aware the officer had problems because he had frequent crying spells at work and his doctor had provided a medical assessment that attributed some of his absences to “adjustment disorder with a depressed mood.”

You Make the Call

Did the city have just cause to dismiss the officer for his inability to be present enough to do his job?
Should the city have made more of an effort at accommodation?

If you said the city should have done more, you’re right. The arbitrator found it was likely that much of the officer’s absenteeism issues could be attributed to his mental health issues. The city was “not made specifically aware” of these issues before his termination and the only medical report it had was the misdiagnosis stating the officer would be fine and only needed a washroom nearby. It was also likely the officer knew he had problems but was in denial about them.

However, the arbitrator found it was “surprising” that the city didn’t ask for details when the officer mentioned his referral to a specialist at the termination meeting. This information made the city aware the officer was getting help for his medical issues — and potentially more medical information — at a time when it was terminating him for absences of which many had been attributed to those medical issues. Though the city wasn’t specifically aware of the officer’s mental health problems, it should have inquired more to see if the reason for seeing the specialist was related to his absences, said the arbitrator. As it turned out, medical help the officer received led to a proper course of treatment and an improvement in his condition.

“The employer was aware prior to the (officer’s) termination that he was seeking treatment from a specialist with respect to his medical problems,” said the arbitrator. “Although such further medical information might reasonably be expected to be relevant to the termination decision, the employer did not respond to the information and decided to terminate the (officer) regardless.”

The city was ordered to reinstate the officer to his job. However, because the city had already endured years of high absenteeism and the officer “should accept the consequences as part of the process of re-establishing himself in the workplace,” the arbitrator decided not to award any compensation. See Ottawa (City) v. C.U.P.E., Local 503, 2012 CarswellOnt 8677 (Ont. Arb. Bd.).

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