The arbitrator found the termination directly related to her disability
A historian from the Canadian War Museum in Ottawa will be getting her job back following a reinstatement order from a federal labour arbitrator who found her termination unjust. The historian, who was hired in April 2016, was fired back in March 2019 after "failing to return to work from what the employer characterises as an unauthorised medical absence."
The employee went off work in June 2018 due to events in the workplace, before eventually getting diagnosed with an adjustment disorder with associated anxiety and depression. However, her employer questioned her absence as it coincided with her denied family leave scheduled for August 2018. They further became suspicious due to the lack of medical information from her family doctor.
In January 2019, the employer hired another doctor to review the medical information, who spoke to the employee's family doctor and concluded that there was "no objective medical evidence to support her absence."
With her insurer denying the employee's long-term disability benefits request, the employee was ordered to return to work, and when she failed to show up, the employer terminated her employment in March 2019.
Her termination was met with opposition from the Professional Institute of the Public Service of Canada, which filed a grievance in April to challenge the decision of the employer.
According to the union, the employee provided sufficient medical information throughout her absence and went off work for legitimate medical reasons.
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And in the decision dated on May 5, arbitrator Colin Johnston sided with the union and the sacked historian saying he found the termination unjust.
"Based on all of the evidence, I conclude that the Grievor's employment was unjustly terminated," said the arbitrator in his decision. "The decision to terminate her employment was directly related to her disability. Furthermore, I find that the refusal to allow her to remain off work represented a failure to accommodate."
The arbitrator then ordered the reinstatement of the historian, as well as compensation for lost wages.
"I direct that the Grievor be reinstated and compensated for lost wages, the calculation of which will have to consider when she could have reasonably returned to work," Johnston said. "The Grievor is also entitled to human rights damages which I will leave to the parties to resolve."
According to Johnston, he agrees that the historian was in no position to work when she was ordered to return in March 2019.
"Had she returned to work, there still would have been many unresolved issues that would have delayed the process of her return."
