Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.
This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart).
In this case, TRW was never supplied with a medical note or any objective explanation of employee Dave Lockhart’s unreported absences of 22 days in less than two months prior to terminating his employment. The only medical explanation he ever gave TRW was his own assessment that he was “going through a bad stage.”
No further explanation was provided despite the fact that Lockhart actually had a medical note in his possession. His termination was ultimately overturned, however, and he was reinstated.
At the time of the termination of Lockhart’s employment, he was part of his bargaining unit’s collective agreement negotiating team. TRW had a policy that members of the negotiating team were given time off for the duration of collective agreement negotiations. In lieu of reporting to work, these employees were expected to attend all negotiation and preparatory sessions. They were also provided special overtime earnings for their attendance.
A few weeks into the process, Lockhart stopped attending the preparatory meetings and negotiation sessions. Over the course of the following month and a half, he missed 33 days of meetings/sessions. Under the governing collective agreement, Lockhart was responsible for notifying TRW of his absence. But he failed to notify TRW of his expected absence for all but 11 of those days.
Well into the arbitration hearing, Lockhart testified that his absences were sparked by a chance encounter with his ex-wife and children, which caused him significant distress. During and around the time of his absences, he was seeking medical attention and actually secured a medical note excusing him from work for a time.
TRW called Lockhart and the union in for a discussion on the absences. Though he had his medical note, he didn’t provide it to TRW. Instead, he told TRW that he was seeking medical attention, was not of sound mind, and was “going through a bad stage.” TRW suspended him and arranged for a follow-up meeting for further discussions. When he failed to show up for that meeting, he was fired.
Lockhart was thereafter diagnosed and treated for borderline personality disorder. The union grieved his dismissal, and the case proceeded to arbitration.
At no time did Lockhart provide his employer with objective evidence justifying his absences. Furthermore, the collective agreement that governed Lockhart’s employment provided that an employee who was absent without leave (AWOL) for five consecutive days was automatically terminated.
The employer pointed out at arbitration that during his run of absences, Lockhart had been absent for five consecutive days. As such, the automatic termination clause was clearly applicable. In the alternative, TRW argued at arbitration it had cause to terminate his employment on the basis of his absences regardless of the collective agreement AWOL clause.
In reviewing the evidence, the arbitrator determined that Lockhart’s actions around the time of his absences were related to his medical condition. Though TRW didn’t objectively know this condition was affecting his attendance, it did have some subjective knowledge that he was acting differently than usual and that he disclosed that he was seeking medical treatment during the “bad stage.”
Despite this, Arbitrator Brian Sheehan also found TRW’s frustration justified; not only was Lockhart repeatedly absent, he failed to provide objective information that TRW could have used to review accommodation options and to understand his condition.
The arbitrator reinstated Lockhart on the conditions that he:
(a) continue to receive treatment for his borderline personality disorder, and
(b) comply with the TRW procedure for reporting absences over the subsequent 24 months.
By the time this matter reached the arbitration hearing, it was clear that Lockhart was directly affected by a medical condition. To avoid situations like this, if an employer has some sense that an employee’s actions are an aberration, even though they may not like the answer, employers should ensure that they ask the question: What is causing the unusual behavior?
Further, if an employee discloses information that reasonably suggests a medical condition is affecting his or her work, employers shouldn’t wait for the employee to voluntarily disclose objective proof. The question should be put to such employees whether or not they have information from a medical professional that suggests a medical condition is affecting their duties. If so, employees should be asked to obtain a doctor’s note and provide a copy. The employee has a duty to work with the employer if accommodation is required. And objective proof is required to understand what accommodation may be necessary.
This case suggests that where there’s smoke, there may be fire. A unionized employer in Canada may not be able to ignore limited evidence of a medical condition before terminating an employee’s employment, particularly where the evidence will later show that an employee’s misconduct was clearly connected to that medical condition.
Marc Rodrigue is an Associate with the Firm's Labour, Employment and Human Rights practice group. He maintains a broad practice including matters relating to human rights, employment agreements and terminations, departing employee litigation, labour relations and collective agreement interpretation. Prior to joining Fasken Martineau as an associate, Marc articled with the Firm in 2011/2012. During that time, he represented Toronto articling students on the Ontario Bar Association Council. He also summered with the Firm in 2010, during which time he was seconded to the Ontario Human Rights Commission.