Lack of disclosure leads to dismissal

B.C. employee cites privacy concerns in refusing to provide medical info

Lack of disclosure leads to dismissal
Stuart Rudner

By Anique Dublin

In the recent case of Provincial Health Services Authority and HSA BC (Kozak), Re, a British Columbia arbitrator held that the employer was justified in terminating an employee for cause because she failed to provide her employer with medical information to substantiate her lengthy absence from work.

E. Kozak was employed by Provincial Health Services Authority in the medical laboratory technician area for over 40 years.

On Jan. 23, 2017, Kozak commenced a leave of absence due to illness. Article 19.04 of the collective agreement between Kozak and the health authority states that sick leave with pay is only payable because of sickness and the employer may require proof. Further, it provides that failure to provide such proof can be cause for disciplinary action, and repeated failure could lead to dismissal.

On Feb. 15, 2017, Provincial advised Kozak that she would need medical clearance before returning to work. It provided Kozak with the necessary documents but despite numerous requests, Kozak refused to provide the requested information because of privacy concerns. Her failure to provide the requested information lead to several disciplinary actions and, ultimately, the termination of her employment on April 10, 2018.

Prior to this, Kozak’s job performance over her lengthy service with Provincial was not an issue. She was 61 years old at the time of the termination of her employment.

Kozak brought a grievance against Provincial, arguing that it did not have just cause to terminate her employment. She argued that she was authentic in her privacy concerns and did not deliberately frustrate the process as alleged by Provincial. Kozak also argued that termination was excessive given her length of service with the health authority and the economic hardship that termination created.

 The grievance was dismissed.

The arbitrator held that despite Provincial’s many requests and warnings, progressive discipline being applied and advice from the union, Kozak chose to submit what she wanted to and expected Provincial to take it at face value. The arbitrator concluded that Kozak was not deliberately defiant, but she did not listen to the advice of her union or follow the direction of Provincial, and such action has consequences.

The arbitrator held that Provincial had a right to ask for medical information because it had no medical information to support Kozak’s length of the absence and she intended to return to work.

The arbitrator also concluded that Provincial acted reasonably to maintain Kozak’s privacy. Kozak was advised to send the medical information to the disability management advisors only; instead, she proceeded to copy numerous management people, human resources staff and union personnel.

The arbitrator held that Kozak’s length of service and the special economic hardship a termination would cause (potential foreclosure on her house) were all mitigating factors in her favour. However, the arbitrator was not persuaded that reinstatement, even with some conditions, would be a viable option. The conditions would involve providing medical information at the very least and Kozak made it clear by her actions and during her testimony that she would not, under any circumstances, provide medical information.

This case confirms that, in many cases, the employee’s response can make the difference between a finding of just cause and a conclusion that the employee deserved another chance. For more information regarding accommodation and providing sufficient medical information, please click here to read our previous blog.

Anique Dublin is a law clerk and billing clerk at Rudner Law in Toronto. She can be reached at anique@rudnerlaw.ca.

Latest stories