Worker claimed he wasn't accommodated, but didn't provide medical clearance to return to work
An employer did not terminate a worker who declined an accommodated job offer but didn’t provide medical information on his ability to return to work, the Canadian Industrial Relations Board has ruled.
The company operates a trucking business in Alliston, Ont. It hired the worker as a truck driver in 2001.
In August 2016, the worker injured himself at work. He had to take a few days off from work and received worker’s compensation benefits from the Ontario Workplace Safety and Insurance Board (WSIB).
The worker returned to work on modified duties on Aug. 12, working reduced hours with physical restrictions. However, he stopped working for medical reasons on Aug. 18 and did not return.
The worker received employment insurance income replacement benefits until December and then long-term disability (LTD) benefits for one year until December 2017. Over the course of 2017 and 2018, he tried to return to work but he was unsuccessful.
Still an employee
In October 2018, the worker filed an unjust dismissal complaint with Employment and Social Development Canada (ESDC) claiming termination and severance pay from the company. The ESDC determined that the worker was still an employee and dismissed the complaint.
In January 2019, the worker reached out to the company about returning to work. The company advised that he would need a medical note clearing him to return to work, and he replied that he was uncertain that he would be cleared to work as a truck driver.
The company offered the worker an alternative position as a dispatch assistant, but he declined because his doctor advised against him returning to work. The company said to contact it if his situation changed.
In November 2019, the worker agreed to withdraw his unjust dismissal complaint and review the job description for the dispatch assistant position with his doctor. The company provided the job description, but when he asked about the mental stress level in the dispatch department, the company was unable to provide an answer.
The accommodation process can be a marathon with both the employer and employee playing a role.
Unable to perform duties of accommodated position
On Dec. 10, the worker sent a note from his doctor stating that he was unable to perform the duties of the dispatch assistant position due to medical reasons. One week later, the worker asked for termination and severance pay.
The company declined to provide termination and severance pay because the worker was still an employee absent for medical reasons and it would continue to try to accommodate him. It added that it understood that he was medically unable to work as of the date of his doctor’s note.
The worker filed a second unjust dismissal complaint alleging that the company failed to accommodate his disability through a modified return to work, which constituted constructive dismissal. He also argued that, alternatively, the employment relationship ended through frustration of contract due to his medical inability to return to work.
The board noted that the worker never supplied a medical certificate that stated he was fit to return to work and the details of his restrictions. Without such a certificate, the company was unable to conduct a meaningful search for accommodation, said the board.
The board found that the worker seemed to misunderstand the accommodation process, as he had asked the company to provide him with job offers to review with his doctor without a medical clearance to return to work. Although the company requested more medical information, the worker did not provide any and did not fulfil his obligation to co-operate in the accommodation process, the board said.
An employer didn’t have to accommodate a worker who requested specific accommodation but didn’t provide information on his restrictions, the Alberta Human Rights Tribunal ruled.
Ongoing accommodation process
The board found that the company and the worker were engaged in an ongoing accommodation process and there was no repudiation of the employment contract. As a result, there was no constructive dismissal, said the board.
As for frustration of the employment contract, the board found that the worker did not provide evidence that demonstrated that he could not fulfill the terms of his contract or that there was no reasonable likelihood that he would be unable to return to work. In addition, the worker’s argument that the company was not accommodating him with a modified return to work suggested that he would be able to return – which meant that the employment contract was not frustrated, said the board.
The board determined that there was no constructive or unjust dismissal because the company did not terminate the worker’s employment. The worker’s complaint was dismissed. See Brown and Warren Gibson Ltd., Re, 2022 CIRB 1034.
