'With a slightly different set of circumstances, it may very well have gone another way': lawyer
An Ontario arbitrator has reinstated a worker who was fired for skipping an employer-mandated independent medical exam, substituting a lengthy suspension for insubordination.
The worker was hired in 2012 by Innocon Inc., a provider of concrete for construction projects in Toronto, to be a truck driver for the company. He had a three-day suspension on his disciplinary record.
The worker sustained a back injury at work on April 27, 2021, while lifting heavy materials. He was able to continue working with a mix of modified and regular duties. Innocon provided a formal offer of modified work on July 5, which the worker signed and began the next day.
However, the worker had to stop working completely on July 14. He provided Innocon with medical documentation from his family doctor, including a certificate stating that he was unable to work for an indefinite period. His doctor also completed a Workplace Safety and Insurance Board (WSIB) functional abilities form on July 20, indicating that the worker was “physically unable to return to work” until at least his next appointment in two weeks.
The worker’s doctor also filled out a WSIB form for return-to-work information, stating that the worker wasn’t able to work because of pain in his right leg, reiterating that a follow-up appointment was in two weeks.
Medical information
It seemed to take a few weeks for Inncon to push for medical information, which isn’t uncommon but isn’t always advisable, according to Aleksandra Pressey, an employment and labour lawyer at Williams HR Law in the Greater Toronto Area.
“As an employer, as soon as you become aware that there's some type of medical limitation, you want to be asking for information as soon as possible,” says Pressey. “It's understandable that you're going to need a few days to review and get things in order - and obviously you want to take any accommodation requests in good faith - but make it clear what you're asking for and why, in order to ensure that an employee can work in a healthy and safe manner.”
After receiving this information, Innocon had trouble reaching the worker to obtain updates about his medical condition. The company sent him a letter on Aug. 16 asking for medical information within 48 hours. After receiving no information, it informed the worker on Aug. 23 that it had scheduled an independent medical examination (IME) for Sept. 13, because it needed medical information to properly facilitate his safe return to work. The collective agreement had a provision obligating employees to comply with employer-mandated medical exams.
The worker texted his supervisor on Aug. 29, saying that he had doctors so he didn’t need the IME appointment, and he wasn’t getting paid for it so he didn’t need to go.
Innocon sent a second letter about the IME on Aug. 30, but it was returned to sender as unclaimed.
Direction to attend independent medical examination
Innocon sent a “final request” for the IME on Sept. 2, advising that if the worker didn’t attend, his employment would be terminated under a collective agreement provision stating that an employee would be deemed to be terminated for an absence of three consecutive days without providing satisfactory support for the absence.
The worker texted back the next day, asking the company to “stop sending letters to my address” and to “contact my lawyer and doctor.”
It’s a key detail that this was a unionized environment and the collective agreement allowed for the possibility of an IME, because IMEs are considered to be invasive and difficult to justify otherwise, says Pressey.
“You're sending an employee to a doctor with whom they have no relationship and they didn't select, and they're usually subjected to a more thorough examination than they might be in the standard 15-minute meeting they would have with their family doctor to get a doctor's note,” she says. “And so, usually, absent a specific article in a collective agreement that allows for an IME, an employer has to have a really good reason to ask for one.”
“In a non-unionized environment or a unionized one without such a provision, an employer may need a couple of additional steps,” adds Pressey. “If a family doctor says, ‘I can't provide that information, but a specialist can,’ you might have to go to the specialist first and then it might be a few steps before you get to being able to reasonably request an IME -you can’t just jump to it.”
Termination of employment
The worker didn’t attend the IME appointment, so on Sept. 15, Innocon terminated his employment. The termination letter outlined the reasons, including failing to provide clear medical evidence about his absence from work, failing to report for modified duties or providing medical evidence why he couldn’t perform them, failing to co-operate with the company regarding his status, an insubordinate text message, misleading the company about not receiving the letters, and not attending the IME.
The union grieved, arguing that the insubordination was related to only one event - the IME - and termination was excessive given the worker only had a three-day suspension on his record and was absent for only two months. Innocon maintained that the worker was insubordinate, not forthright, and didn’t accept responsibility for his behaviour, which all warranted termination.
The worker also argued that he didn’t refuse to go to the IME, but he acknowledged that he cancelled the appointment. He also said that he was sorry he didn’t go to the IME because he didn’t know things would turn out the way they did, and he would attend an IME appointment if asked, to fulfill his duty in the accommodation process.
The arbitrator found that Innocon and the worker’s supervisor had issued a clear and authoritative directive to attend the IME under the collective agreement, and the worker’s texts indicated that he understood this requirement but chose not to comply because he believed that he didn’t need it. These were elements constituting insubordination, the arbitrator said.
While acknowledging that the worker was insubordinate and failed to co-operate in his return-to-work process, the arbitrator didn’t find that Innocon proved the other allegations listed in the termination letter, including failure to provide medical documentation and misleading the employer. The worker provided some medical information from his doctor that he was unable to work in July, and Innocon didn’t request further information until the Aug. 16 letter, said the arbitrator, adding that there wasn’t evidence that the worker was able to perform any modified duties.
The arbitrator also found that the worker’s text messages didn’t rise to the level of insubordination, and he didn’t receive the Aug. 30 letter, which was returned to sender.
Reinstated with suspension
The arbitrator determined that dismissal was excessive, given the worker’s nine years of service and his stated willingness to comply moving forward. A one-month suspension would convey “the importance and necessity of attending an IME appointment, particularly given [the collective agreement article],” the arbitrator said.
Innocon was ordered to reinstate the worker with an unpaid one-month suspension on his record for insubordination, with no loss of seniority but no compensation for lost pay since the dismissal.
There’s a high bar for dismissal, particularly in a unionized environment, but it’s clear that the arbitrator viewed the worker’s conduct as serious, says Pressey.
“Typically, an unpaid suspension is two or three days, so one month is quite significant, and he wasn't given any sort of monetary award,” she says. “It indicated that, even though the employer's chosen discipline was excessive, the arbitrator didn't think it was too excessive - the way the award is structured suggests that this really was quite borderline and, with a slightly different set of circumstances, it may very well have gone another way.”
Although the worker was reinstated, the case demonstrates that it’s important for the employee to co-operate in accommodation and return-to-work processes, according to Pressey.
“Employees aren’t necessarily entitled to the perfect accommodation, just reasonable accommodation, so if the employee is behaving in an unreasonable way, you want document all of these things, set clear deadlines for the information you need, and follow up,” she says. “And it's a good principle, whenever you're dealing with accommodation, to make sure that you're asking for all the information you need related to medical limitations and prognosis - but you're never allowed to ask for diagnosis information – and with respect to IMEs, they're a useful tool but they're very expensive and employees can be quite resistant to them.”
See Innocon Inc. v. Teamsters Local Union 230 (June 4, 2024), Randy L. Levinson – arb (Ont. Arb).
