You make the call
This edition of You Make the Call features a British Columbia worker who was fired for job abandonment after going on medical leave.
Donald Bailey, 65, was a salesman for Service Corporation International (SCI), a company that sells funeral-related products and services and operates cemeteries and funeral homes in the Vancouver area, since 1996. He also studied to be a real estate agent and told management he was going to obtain his real estate licence. No one at SCI told him this wasn’t allowed, though his supervisor felt it was interfering with his work.
On June 23, 2013, Bailey obtained a doctor’s note stating he had a medical problem and should be off work for two weeks.
On Sept. 11, 2013, Bailey went to the same clinic and received a medical absentee certificate that stated he should be off work until March 1, 2014, due to medical reasons — he had been experiencing symptoms of stress, and anxiety. He informed an SCI manager the same day about his medical issues and sent the certificate the next day.
Bailey’s supervisor sent him a request for leave document and filled out a record of employment (ROE) request indicating the reason for needing an ROE was a leave of absence. When Bailey saw the ROE, he said it was wrong and the reason should be that he had an illness. He refused to sign the form.
A new ROE form was drawn up with the reason for request listed as “illness or injury,” but Bailey wasn’t asked to sign it. Bailey applied for short-term disability (STD) benefits, but the benefits provider denied the claim as it determined Bailey’s condition arose out of the course of employment and he should apply for workers’ compensation benefits. Bailey did so, claiming his medical condition had been “created by years of working in a stressful environment” during which time he had been abused by his supervisor and another manager. His claim was denied on the grounds that his stress arose out of the ordinary course of his work.
Bailey appealed the denial of STD benefits, but didn’t hear from SCI until Nov. 28, when his wife made a claim for benefits and the provider informed him he was no longer an employee of SCI. It turned out SCI had dismissed Bailey for abandoning his employment, retroactive to his last day of work on Sept. 11. SCI said that Bailey was absent without leave, as he hadn’t provided sufficient medical information to support his absence. In addition, the company said Bailey had worked as a real estate agent during his absence.
You Make the Call
Were there grounds for dismissal?
OR
Was the employee’s leave legitimate?
If you said the employee’s leave was legitimate and he shouldn’t have been fired, you’re right. The court found that while SCI didn’t accept the medical certificate Bailey provided as sufficient to support his absence, it didn’t request any additional information from him or inform him it needed more. In addition, the company was fully aware of the reason for his absence — Bailey had informed management the day he stopped working and had been previously off work because of his stress — and the steps the company took — sending him a request for leave form and preparing an ROE — showed it was aware he was taking medical leave. In addition, though the benefits provider rejected his claim for STD benefits, Bailey appealed the decision, a process that was still ongoing when SCI terminated his employment.
The court also found that during Bailey’s absence, SCI didn’t keep in touch with him and didn’t tell him it considered him to have abandoned his employment. As a result, Bailey wasn’t given a chance to answer the accusation or provide more support for his absence.
As for the supervisor’s belief that Bailey was working as a real estate agent during his absence, Bailey did not try to hide his pursuit of a real estate licence and part-time work in real estate from SCI and the company didn’t tell him it had any problems with him doing that. Any work he may have done was part-time and was likely no different than what he would have done had he still been working regularly with SCI, said the court.
The court found SCI wrongfully dismissed Bailey and ordered the company to pay him the equivalent of eight weeks’ salary and benefits as limited by his employment contract to the legislative minimum — $23,293 — plus aggravated damages of $25,000 and punitive damages of $110,000 for SCI’s lack of good faith in firing Bailey when it knew he was ill, and not properly informing him.
For more information see:
• Bailey v. Service Corporation International (Canada) ULC, 2018 CarswellBC 320 (B.C. S.C.).
