Employer failed to consider new medical info

The grievor was terminated for excessive absenteeism. At termination, he was being assessed for what turned out to be a mental illness. The arbitrator ruled that the company had failed to take his medical condition into consideration and the grievor was reinstated.

A chronically absent worker was fired after the employer’s attempts to manage his absenteeism and accommodate his medical issues failed. The union grieved, arguing the employer failed to properly consider evidence of a previously undiagnosed underlying condition before firing the worker.

M.P. worked for a municipality as a parking control officer. He had 19 years’ service when he was terminated on Nov. 12, 2008.

M.P.’s excessive absences from work caused him to be flagged by the employer’s Attendance Management Program a number of times.

M.P. averaged 53 absences per year in the 10 years prior to his termination. He missed 134 days of work over the final 18 months of his employment with the city.

M.P. had a number of different explanations for his absences.

In 2008, M.P. entered into an accommodation arrangement with the employer. The plan allowed that M.P. might be absent one day per month due to Irritable Bowel Syndrome (IBS).

However, M.P. continued to miss up to five and six days per month. The employer also became concerned about a lack of medical documentation to support the absences.

Unable to do his job

M.P. was fired. The union grieved.

The employer said it had not discriminated against M.P. on a prohibited ground or treated him in an unequal manner because of a disability. M.P. was fired because he was unable to do his job.

The employer said it undertook to accommodate M.P.’s IBS in the belief his prognosis for improved health and attendance was good. That was not the employer’s experience.

The employer’s efforts to accommodate M.P. and, ultimately, its decision to terminate him may have been based on a misdiagnosis but the employer acted based on the information it had at the time. Given M.P.’s “abysmal” attendance record, it was not reasonable to expect the employer’s duty to accommodate should require excessive absenteeism be accommodated with more absenteeism, the employer said.

The union acknowledged M.P.’s poor attendance record, but said it was clear now he had been suffering from anxiety and major depression and the IBS and other ailments he had suffered with over the years were in fact symptoms of the previously undiagnosed and untreated mental illness.

Referral to a specialist

The union said the employer was or should have been aware of the evolving understanding of M.P.’s mental health issues. M.P.’s doctor alerted the employer in 2007 that M.P. was suffering from episodic adjustment disorder in the wake of his father’s death. M.P. was falling victim to crying spells at work and his managers knew this. The employer was also informed M.P. had been referred to a specialist.

M.P. should not be faulted for the delay in receiving a proper diagnosis, the union said. Now that the real cause of his illness was understood, M.P. was entitled to accommodation up to the point of undue hardship. There was an obligation on the employer to be able to demonstrate the steps, assessments and considerations it made in its attempts to accommodate M.P. However, the employer did not consult either M.P. or his doctor about how the plan was or was not working or make any modifications.

The Arbitrator agreed that the employer had failed to properly assess M.P.’s medical condition.

The employer argued that it was not liable because it was not in a position to know M.P.’s true medical condition when it fired him.

New medical evidence relevant

The Arbitrator disagreed. In this case, where M.P. was being terminated for innocent absenteeism caused by medical conditions, it was reasonable to expect the employer would consider all the relevant medical factors before moving to terminate M.P. The employer should have followed up, the Arbitrator said.

“In such a context, information about potential new medical evidence, particularly at the level of a specialist, would seem to be reasonably relevant. It is my view that the employer should have responded to the information provided by the union and made some effort to determine whether the specialist referral might in fact be relevant to the medical issues driving the termination decision.”

The employer knew M.P. was seeking treatment from a specialist but it fired him anyway.

The evidence suggested that in the interim, M.P. had overcome misdiagnosis, personal denial and the social stigma that makes diagnosing and treating mental illness so difficult and had undergone successful treatment.

M.P. wanted a chance to return to work. The Arbitrator said he should get one.

However, the Arbitrator said M.P. was not absolved of his long history of excessive absenteeism.

The evidence showed M.P.’s absenteeism was almost entirely attributable to an undiagnosed mental illness for which he had been successfully treated.

Going forward, M.P. was to measure up to normal expectations with respect to attendance.

M.P. was reinstated without compensation.

Reference: City of Ottawa and Ottawa-Carleton Public Employees’ Union, Cupe Local 503. Barry Stephens — Sole Arbitrator. Christine Enta for the Employer. Lori Harreman for the Union. June 15, 2012. 15 pp.

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