Nine requests for documentation denied by long-time worker
A long-time employee with the British Columbia provincial health authority was fired after taking time off for sickness and not providing repeatedly requested medical notes.
The employee, identified as “E. Kozak,” had worked for the Health Employers Association of British Columbia (HEABC) since 1978 in the medical laboratory technician area, but on April 10, 2018, she was terminated by Karen Mooder, director of laboratory operations.
“Since January 2017, you have not been compliant with requirements despite our numerous documented attempts to secure detailed medical information from you that substantiate your illness,” said the letter, which went on to cite article 19.04 in the collective agreement.
“Sick leave with pay is only payable because of sickness and employees who are absent from duty because of sickness may be required by the employer to prove sickness. Failure to meet this requirement can be cause for disciplinary action. Repeated failure to meet this requirement can lead to dismissal.”
The agreement also included a mandatory enhanced disability management program (EDMP) that allowed the employer to “collect, use and disclose information about (the employee) that is necessary for the operation of the EDMP, the continuation of or return to work.”
Kozak first booked off work due to sickness on Jan. 23, 2017. Despite being officially off sick, Kozak often came back to the office after hours to catch up on work. The employer ordered Kozak to cease this activity and changed the locks after she refused to comply.
On Feb. 15, Kozak was told she had to get clearance from a workplace disability advisor before she could return to work. Kozak received the documents and was told to enroll in the EDMP.
She was given deadlines of March 14 and then March 21 to return documents, but Kozak didn’t comply.
Kozak later phoned Michelle Kelsey, laboratory site supervisor, and Debbie Conn, manager of laboratory operations, to say she should be back at work by Easter. Conn advised Kozak that she must comply with the employer’s requirements, including enrolling in the EDMP, before she could receive clearance to return to work.
An April 18 letter was not heeded. Kozak was placed on “unauthorized leave of absence” without pay, effective April 26. Another letter by Conn said that if the requested documents weren’t received by May 19, the HEABC would “proceed with terminating your employment effective that date.”
However, Kozak was not terminated and she was given another chance by Mooder to comply and told to attend a June 23 meeting or her “conduct will be deemed serious and will result in discipline, up to and including termination of your employment.”
Kozak didn’t respond as well as to another request for July 12. She was suspended for two days. Further requests also were not heeded and Kozak was suspended for four days in August.
On Aug. 14, Kozak sent medical notes but “they do not sufficiently detail enough medical information about the nature of your illness to support your absence from work since January 2017,” wrote Mooder.
After many back and forth documents and a refusal of nine times to comply with the requirements, Kozak was terminated on April 10, 2018. The Health Sciences Association of British Columbia (HSA) grieved the dismissal.
Kozak said she didn’t enroll in the EDMP for privacy reasons and she didn’t want to apply for LTD benefits due to the stigma around them.
However, arbitrator Mark Brown upheld the firing.
“Kozak, despite numerous requests from the employer, numerous warnings from the employer, progressive discipline applied by the employer and advice from the union, took it upon herself to not respond in the way requested. Eventually (Kozak) did send in one OGMT (ongoing medical treatment) prior to termination but it lacked information and noted that medical information would be kept confidential in any event. Essentially, Kozak’s view was that she was not going to provide the employer with any information.”
Reference: Health Employers Association of British Columbia and Health Sciences Association of British Columbia. Mark Brown — arbitrator. Dave Hanacek for the employer. Stephen Hutchison, Jessica Derynck for the employee. June 7, 2019. 2019 CarswellBC 1694