In this edition you will find:
Feature Article: Two recent awards differed on whether an employer was required to seek additional information from the employee’s physician before compelling the employee to submit to an Independent Medical Examination.
In Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII) (Whist), the employee was a 61 year old school superintendent who sought to return to work after an absence of over two years. His absence had been triggered by depression that was attributable to the employer’s decision to utilize an appointment process, rather than an open competition, to fill its vacant Director of Education position. The employee sought to return only after his accumulated sick leave and unused vacation was about to be depleted.
The evidence established that the employer’s school superintendents normally worked 50 to 60 hours per week, with many of those hours involving evening meetings.
Although the employee had presented a letter from his doctor, the employer concluded that an Independent Medical Examination was warranted. Despite his reservations, the employee agreed to undergo an Independent Medical Evaluation in order to “move things along.” However, the employee subsequently withdrew his concurrence shortly thereafter and the examination was cancelled. He then filed a human rights complaint alleging discrimination on the grounds of disability.
The employer contended that a number of circumstances justified that examination. The doctor’s report recommending a gradual return to work was prepared approximately two months after that same doctor had advised that the employee could not return and that a return might place the employee at serious risk of a relapse. The proposed return also coincided with the expiration of the employee’s sick leave and vacation pay. The doctor had recommended that the employee return to his school superintendent position four hours a day, two days a week, with no evening meetings, and with increased hours to be considered as the employee progressed through a work-hardening process that was expected to take six to twelve months. The doctor also stated that because the employee’s first episode of clinical depression was triggered by conflicts in the workplace, it was critically important that those conflicts be addressed in a frank and sincere manner with both the school board and the Director of Education. Further, the employer contended that the doctor’s report lacked objectivity and amounted to advocacy on the part of the doctor.
The employee had also alleged that the employer had breached the procedural duty to accommodate. He contended that the employer was “repeatedly slow in responding to his return to work interests and that these delays were deliberate and intended to undermine the return to work process.” The adjudicator concluded that the delays were not inordinate given the substantive issues that the employee had raised and the fact that the issue was unfolding at the busiest time of the employer’s school year.
Finally, the employee argued that the employer’s request for an Independent Medical Examination was unjustified in that it fell outside the employer’s Management Guidelines dealing with solicitation of medical information. The adjudicator rejected this contention:
… This does not render the [employer’s] decision in the present case unreasonable given the [its] underlying concerns about the information it had received about the [employee’s] medical condition and proposed return to work. While [such policies] are important tools to promote fairness and consistency in terms of compliance with Code-related obligations, they should also not be seen as either fettering or limiting an employer’s obligation to conduct an individualized accommodation process. It has been said many times that the obligation to accommodate disability-related needs is specific to each individual; this implies not only individualized obligations for an employer, but necessarily also the ability to exercise reasonable discretion in terms of management-based decisions, on a specific and individualized basis.
The adjudicator concluded that the employer’s request for an Independent Medical Examination was reasonable. In doing so, he noted that the employee’s position was that while his employer was entitled to additional information, the appropriate recourse for the employer would have been to first seek clarification and/or additional information from the employee’s doctor. The adjudicator commented that this would have been a reasonable option for the employer to consider. However, the circumstances of this case provided the employer with “sufficient reason to question the adequacy and reliability of the information that had been provided about the [employee’s] condition, [his required] accommodations and
[his] ability to return to work.” The employer’s decision “to immediately pursue a different option namely a further medical opinion by means of an IME was reasonable.”
By way of contrast, in William Osler Health System, 2015 CanLII 39612 (ON LA) (Tims), the employee alleged that her employer failed to provide her with suitable accommodated work during the six week period immediately following her attempt to return to work. Her treating physician had advised that she had several significant restrictions that needed to be accommodated. Given that information, the employer’s occupational health physician recommended that the employee submit to an orthopedic Independent Medical Examination before he would clear her to return to modified duties.
The employee submitted to the IME, and the resultant report was said, by the union, to align with the recommendations made by the employee’s physician several weeks earlier.
The issue for determination was whether it was reasonable for the employer to request an IME by an orthopedic surgeon, and whether the employer acted in a reasonable manner and at a reasonable pace in making the arrangements for the IME.
The arbitrator concluded that the information that had been presented when the employee sought to return was such that the employer could reasonably request further medical information before returning the employee to work. However, while
… the employer was justified in seeking additional medical information in the circumstances … it “was obligated to use the least intrusive means” available in doing so … While IMEs are undeniably necessary and appropriate in certain circumstances, they are described in the authorities cited by the parties here as “incontestably intrusive” and “a resource of last resort.” … Whether or not an IME is the appropriate means for obtaining required medical information is, of course, a determination that must be based on the specific facts in issue …
The arbitrator concluded that the employer had “overreached” in “immediately seeking an IME without first attempting to obtain the required medical information in a less intrusive manner, and particularly through the family physician or possibly a treating orthopedic specialist.”
Despite the fact that the union and employee had not objected to the requested IME, the arbitrator concluded that the employer was not entitled, in the circumstances, to require an IME without having first attempted to obtain the reasonably required medical information from the employee’s treating physician. The resultant delay could not be ascertained and as a result, the arbitrator referred that matter to the parties to attempt to agree on a wage loss figure, having in mind that the law permits an employer a “reasonable time” to implement workplace accommodation.
An employer’s right to compel an employee to undergo an independent medical examination is addressed in Chapter 8 of the Illness and Absenteeism manual and its supplement.
Recent Decisions of General Interest:
A) An award of $75,000 for injury to dignity, feelings and self-respect was set aside by the British Columbia Supreme Court on the grounds that it was not based on reason, evidence or principle, and as such, was patently unreasonable.
In University of British Columbia, 2015 BCSC 1731 (BCSC), the Court upheld an adjudicator’s “six-year” wage-loss award based on losses attributable to a physician’s termination (and eventual reinstatement) in the University’s Family Medicine Residency Program. The physician’s improper termination was found to be at least partially attributable to performance difficulties related to his Attention Deficit Hyperactivity Disorder (ADHD) and his Non-verbal Learning Disorder (NVLD).
The wage loss award of $385,195 included a 40% contingency reduction to reflect the fact that the physician might not complete the program and/or might not practice on a full-time basis following its completion.
The adjudicator awarded $75,000 for injury to dignity, feelings and self-respect. The Court held that this aspect of the award was patently unreasonable. Although there was no statutory or de facto cap on injury to dignity awards, the amounts in British Columbia had been steadily increasing over the past 20 plus years, and an award of $75,000 was more than twice the $35,000 maximum that had been awarded in cases of this type. The decision here was not based on reason, evidence or principle, and as such, was patently unreasonable and must be set aside. The Court directed that this aspect of the award be referred back to the adjudicator who would then hear further submissions from counsel.
Damages for human rights violations are addressed in section 14:702 of the Illness and Absenteeism manual and its supplement.
B) An employer may be required to reinstate a returning employee prior to receiving clarification and/or additional information arising from a medical report that was provided by the employee.
In Toronto District School, 2015 CanLII 38717 (ON LA) (Wacyk), the employee was kept out of service for four weeks after having provided the employer with medical clearance to return to work. While the arbitrator found that the employer could not be faulted for raising questions regarding the medical information that the employee had provided, the nature of the questions “was not sufficiently significant to justify refusing to reinstate the [employee] until they were answered. An employer’s decision to request additional information does not mean, in all cases, the return to work is put on hold.” The adjudicator found that the employee should have been returned to work within one week of her doctor responding to the employer’s first set of questions, for at that point, the employer had enough medical information to permit the employee to return to work with some limitations. While it was not unreasonable for the employer to request additional information, the request “must be balanced with the requirement that in all circumstances, accommodation ought to be carried out within a reasonable period [of] time.”
The issue of delay in permitting an injured or ill employee to return to work is addressed in section 14:701 of the Illness and Absenteeism manual and its supplement.
C) A prima facie case of pregnancy-related discrimination is often established by the existence of a temporal relationship between the disclosure of the pregnancy and the discriminatory action taken by the employer.
For instance, in Mankovitz (No. 2), 2014 BCHRT 48 (CanLII) (Walter), the employee alleged that the employer reduced her hours of work, and ultimately terminated her employment because of her pregnancy. The adjudicator stated:
In assessing whether the evidence supports a reasonable inference that the [employee’s] pregnancy was a factor in her termination, I am entitled to consider the temporal relationship between the disclosure of the pregnancy and the termination, in this case a period of three and a half months.
The adjudicator concluded that in this case, “the decision, timing and circumstances of the [employee’s] dismissal [did] not support a reasonable inference that her pregnancy was a factor in that dismissal.”
By contrast, the adjudicator in Little Buddies Preschool Centre, 2015 HRTO 909 (CanLII) (Randazzo) determined that the facts supported an inference that the employee had been improperly terminated because of her pregnancy. Within 72 hours of the employee having requested accommodation for a pregnancy-related doctor’s appointment, the employer compiled a list of prior disciplinary offences and then terminated the employee for misconduct. The adjudicator concluded that the employee’s request for accommodation to attend pregnancy-related medical appointments was a factor in the employer’s decision to terminate her employment.
The employee was awarded three months lost wages and $10,000 as monetary compensation in respect of injury to dignity, feelings and self-respect. The employer was also directed to complete the Commission’s on-line training course in human rights.
In dismissing a pregnancy-related complaint in Inspired Retreats, 2014 BCHRT 6 (CanLII) (Juricevic), the adjudicator stated that in cases such as this, a connection between the prohibited ground and the termination is often established from “reasonable inferences drawn from surrounding circumstances …” The surrounding circumstances in this case included the date when the decision was made, the date that the employee advised of her pregnancy, and the date that the employee was advised of her termination. The evidence established that the decision to terminate the employee had been made several months earlier but that it had not been communicated to the employee because the employer wanted to first hire a replacement employee.
In supporting or negating such an inference, the Tribunal takes into account the temporal relationship between the pregnancy notice, or leave of absence, and the termination of employment. [The employee] was fired approximately three weeks after notifying her employer that she was pregnant, and one day after returning from a pregnancy-related leave of absence from work. In my view, the timing of the termination strengthens an inference that her pregnancy was a factor.
The Tribunal also takes into account the temporal relationship between the pregnancy notice, or leave of absence, and the timing of the decision to terminate … In my view, the timing of the decision to terminate [the employee’s] employment (as opposed to the day the message was communicated to her) does not support a reasonable inference that [the employee’s] pregnancy or pregnancy-related leave of absence was a factor in the termination of her employment.
The adjudicator concluded that the circumstantial evidence did not give rise to a reasonable inference that the employee’s pregnancy, or pregnancy-related leave of absence, was a factor in the employer’s decision to terminate the employee’s employment.
Finally, in Salon 130 Inc., 2015 HRTO 743 (CanLII) (Fellman), the employee alleged that the employer had terminated her employment because she was pregnant and would be away on maternity leave for an extended period of time.
The employer asserted that the termination was due to the employee’s inadequate work performance.
The adjudicator concluded that the employee had not established that her pregnancy was a factor in the decision to terminate her employment.
The fact that the employee was terminated five days after having announced her pregnancy was a circumstantial fact that suggested that there may be a nexus between the employee’s pregnancy and her termination. Accepting that a prima facie case of discrimination contrary to the Code had been established, “the evidentiary burden shifts to the [employer] to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the termination was not discriminatory.”
The adjudicator concluded that the termination was solely due to discipline that had been imposed prior to the “pregnancy” announcement and a Christmas party incident and related meeting that had occurred after the announcement. The employer had met with the employee two days after the party incident and had prepared and intended to deliver a disciplinary letter rather than a letter of termination. However, the employee was emotional and angry during that meeting. “By refusing to take direction from her employer and then leaving the meeting, the [employee] exhibited unprofessional behaviour.” The fact that the employer had intended to discipline rather than terminate her employment at the meeting supported its position that the employee’s termination was due to her conduct at the meeting rather than her pregnancy.
The issue of pregnancy-related discrimination is considered in section 14:410 (Establishing a Prima Facie Case) of the Illness and Absenteeism manual and its supplement.