Termination excessive for depressed employees 'imperfect compliance'

Southlake Regional Health Centre ordered to replace termination with 30-day unpaid suspension

Southlake Regional Health Centre fired a part-time unit clerk after it judged the medical documentation provided by the clerk did not substantiate her inability to attend work.

The Service Employees International Union (SEIU) filed a grievance.

S.B. was a part-time clerk employed in the centre’s ambulatory day care unit in Newmarket, Ont. Previous discipline did not factor into her termination on Jan. 9, 2012.

On May 9, 2011, S.B. reported that she was ill. She saw her doctor about a week later and advised her supervisor to arrange a replacement for her according to workplace policy.

However, according to the employer, S.B. failed to also notify the employer’s Attendance Support Program (ASP) as required.

S.B.’s failure to notify the ASP meant her absence was not forwarded to the centre’s occupational health department.

The occupational health department at the centre managed employee absences over five days with an eye on the medical aspects of the case and a view towards developing accommodations necessary to return the worker to the workplace.

S.B. saw her family doctor six times between May 17 and Aug. 17. She was diagnosed with major depression and treated by her doctor.

When the Centre’s occupational health department became aware of S.B.’s absence in July, it requested medical documentation.

S.B. provided a basic note that was rejected as inadequate. Later, S.B.’s doctor completed and submitted a functional abilities form as requested by the employer. S.B.’s doctor also provided a physician’s statement and psychological questionnaire (PSPQ) as requested and submitted it in August. However, S.B. refused to complete the part of the form that provided consent to the release of her medical information to the employer.

Disputed diagnosis

While it was S.B.’s doctor’s contention she was unable to work between May and September, the employer’s consulting occupational physician said the PSPQ that S.B. had provided was inadequate. He also disputed the diagnosis of major depression. In September, S.B. was asked to complete and submit a psychological injury form. She refused.

From September to December 2011, through numerous meetings and emails, the employer attempted to persuade S.B. to provide the information it judged was necessary — from an employment perspective — to support her absence and to provide diagnostic information to assist in the development of a return-to-work plan.

However, the employer’s two-track approach went off the rails and S.B. was fired on Jan. 9, 2012.

The employer said S.B. had failed to provide the information necessary to support her absence. The employer said S.B. did not comply fully with its absence reporting procedures and she generally refused to co-operate. S.B. did not communicate consistently and she refused to provide necessary medical forms. S.B. was flouting the employer’s authority to manage, the employer said. Her explanations for her actions were vague and her testimony was evasive and incomplete. The employer said that termination was warranted.

SEIU said S.B. complied with employer requests. Bureaucratic mix-ups and forms that were not filled out to the employer’s specifications were matters that were beyond S.B.’s control.

S.B. had been diagnosed with severe depression and was under the case of a physician, the union said. S.B.’s doctor was of the opinion S.B. was unable to perform any work over the period in question. If the employer needed more information about S.B.’s condition, it should have ordered that she attend an independent medical examination. It did not. The union said S.B. should be reinstated and compensated for lost wages.

Termination was excessive in the circumstances, the arbitrator said.

Employer motivations unclear

It was clear the management of S.B.’s absence went of the rails, the arbitrator said, but both parties shared the blame for that.

The employer’s motivations were not always transparent, the arbitrator said. It was not always clear what information the employer was seeking and why.

“The employer’s professed interest in obtaining the medical information to support the return to work plan is, in my view undermined by the above facts. While it may have formed a small part of the reason underlying the requests, the real purpose was to determine if the grievor was in fact totally disabled from May to September.”

S.B. was not blameless, the arbitrator said. She did not properly report her absences as required, which delayed her file in reaching the occupational health department. She also ducked the process at points and did not always communicate consistently as required.

However, the arbitrator said, the question was whether or not S.B.’s behaviour was culpable to the extent that termination was warranted.

It was not.

“I am of the opinion that the facts do not support the employer’s assertion in argument that the grievor totally ignored or flaunted the employer’s authority to manage or demonstrated a complete refusal to co-operate. While her co-operation was imperfect and not timely, she did in fact take steps to comply in December.”

This was not a case where there was no cooperation at all, the Arbitrator said.

“In those areas where I have found fault with the grievor’s actions, I am of the opinion that, while warranting some discipline, none of these matters, whether taken individually or cumulatively, are just cause for termination.”

The termination was reduced to a 30-day suspension without pay. There was no loss of seniority or benefits and S.B. was to be compensated for any lost wages.

Reference: Service Employees International Union, Local 1 Canada and Southlake Regional Health Centre. Larry Steinberg — Sole Arbitrator. Kim Kaufman for the Union.  Gita Anand for the Employer. May 21, 2013. 24pp.

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