Deemed termination inappropriate

The grievor was being treated for depression. Despite the diagnosis, the employer ended her disability leave and required her to return to work. When she did not, it claimed she had abandoned her job. The arbitrator found that the deemed termination provisions of the contract had been used unreasonably and she was reinstated.

A worker was fired under the deemed termination provisions of her collective agreement after she failed to heed the employer’s order to return from a medical leave.

J.D. (Jane Doe) worked as a receptionist at a medical centre. She started out with the employer as a 14-year-old kitchen helper and had more than 30 years’ service when she was fired. There was no discipline on her record. However, she was placed on an attendance management program in 2008.

J.D. went on sick leave on June 8, 2011 following a difficult meeting with her supervisor.

J.D.’s initial sick leave claim ran out on June 22. On June 28 she met with the employer’s occupational health nurse. J.D. reported a number of physical ailments. She also said she was receiving assistance from the employer’s Employee Assistance Program. J.D. was given a form to be completed by her physician.

J.D. returned the form on July 5. Her doctor said she was being treated for depression and Obsessive Compulsive Disorder (OCD).

The employer determined at that point that there was enough information to support J.D.’s claim for sick leave.

No sick leave for interpersonal problems

In September, J.D.’s doctor responded to the employer’s request for an update. In the follow-up, J.D.’s depression was described as “mild” to “moderate.” The doctor said that J.D. was functional and that because an interpersonal problem was at the source of J.D.’s problems, a graduated return to work in another department would be possible. However, a date for the return to work was not specified.

The employer’s occupational health department determined that an interpersonal problem was not proper cause for a sick leave claim and referred the problem to Human Resources.

That information was conveyed to J.D. in a letter from her supervisor on Sept. 14. J.D. was told to return to work for her next regularly scheduled shift, which was on Sept. 19.

J.D. did not open the letter. However, she was in contact with the occupational health nurse who told her that her sick leave claim was no longer supported. J.D. informed the nurse by e-mail on Sept. 19 that she was scheduled to see her doctor again on Sept. 22.

Deemed termination

The supervisor sent another letter on Sept. 22. This letter noted that J.D. had not returned to work as directed and that her absence had triggered the deemed termination provisions in the collective agreement.

J.D. was called into a meeting. She was fired on Sept. 27.

The employer argued that the deemed termination provisions in the collective agreement applied in this case: J.D. was absent for three consecutive working days; she did not properly notify the employer; and, she was unable to provide the employer with a satisfactory explanation for her absence.

The union said that deemed termination provisions did not apply in this case. The employer was attempting to use the deemed termination provisions to impose discipline on J.D. without having to establish cause, the union said. The union said that deemed terminations are generally a response to an employee who has abandoned his or her job. That was not the case here and it was inappropriate for the employer to attempt to use the deemed termination provisions to challenge the legitimacy of J.D.’s medical information.

The Arbitrator agreed.

The employer’s use of the deemed termination provisions in the collective agreement was arbitrary and unreasonable, the Arbitrator said.

J.D. had been diagnosed with depression and OCD and she was being treated.

“That is not to say that the Employer cannot challenge the assessment and prescription of [J.D.’s doctor]. The employer might have sought more detailed information from the doctor as to why the grievor could not work at her regular job. Or it might have sought an independent medical review of the information provided. But it was arbitrary to have challenged that assessment by unforgivingly purporting to apply the deemed termination provision to what was essentially a dispute between the grievor and the Employer about the grievor’s capacity to work at her regular job. In my view, [the deemed termination provision in the contract] is not appropriate for resolving such disputes particularly where the Employer has full knowledge of the reason for the employee’s absence.”

The grievance was allowed. J.D. was ordered reinstated.

Reference: Service Employees International Union Local 1 and Sunnybrook Health Sciences Centre. Norm Jesin — Sole Arbitrator. Dennis Ellickson for the Union. Brian Smeenk for the Employer. June 26, 2012. 15 pp.

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