Fernie (City) v. Canadian Union of Public Employees, Local 2093 (Ubell Grievance), [2024] B.C.C.A.A.A. No. 48
Naz Mitha, KC and Carmelle Dieleman represented the City of Fernie in a labour arbitration dealing with whether the employer had just cause to terminate an employee who did not provide adequate medical information to justify her absence from work over a two-month period and, along with her union, failed to participate in an accommodation meeting required under the collective agreement.
Arbitrator Noonan concluded that the City had just cause for termination and dismissed the union’s grievance.
Summary of Decision
Facts
The City of Fernie is a municipality located in the East Kootenay region of BC. The grievor was a two-year employee of the City. At the time of her dismissal on April 14, 2022, following a medical leave, the grievor was employed in the Municipal Clerk II position.
The background of the grievor going on medical leave was that she was upset with the employer’s COVID-19-related policies, and she expressed her upset in a manner that the employer considered disruptive and unprofessional. On February 18, 2022, the employer met with the grievor and union to outline its concerns with the grievor’s conduct.
The next business day after the meeting, on February 22, 2022, the grievor sent an email to the employer saying she would not be at work “due to medical reason”. The following day, she provided a note from the local hospital saying she was “Off work for medical reason until assessed by MD”. The grievor indicated that she had an appointment with her physician on March 14, 2022.
On March 14, 2022, the employer provided the grievor with: a) a physician statement in relation to her short term disability claim; and b) a medical certificate outlining the employer’s request for a medical opinion on the grievor’s ability to work, both to be filled out by her physician at her appointment that day.
On March 15, 2022, the grievor emailed the employer stating that the doctor had completed the medical certificate and that the certificate had been provided to the insurer. The grievor did not provide the completed medical certificate to the employer.
As a result, the employer responded to the grievor’s email stating that, among other things, the information provided to the insurer is separate and apart from what the employer is entitled to know. The employer stated it was asking for information about the grievor’s general condition, her prognosis, and an estimate of how long she would be away from work. The employer asked for the completed medical certificate to be returned by March 24, 2022, noting there were urgent staffing decisions to be made.
On March 21, 2022, the grievor provided the employer with the completed medical certificate. However, that certificate provided very little useful information. The grievor’s physician had answered most questions simply as “confidential” or “discuss with insurance”.
On March 22, 2022, the employer again wrote to the grievor, noting that the completed medical form was “completely unacceptable”. The employer advised the grievor that if the physician refused to fill out the form properly, the employer could send the grievor to an Independent Medical Examination at her cost, or she could see another physician, but warned her that if she did not provide the requested information, her employment would be terminated for cause.
The employer agreed to wait for the medical certificate until the grievor’s next physician appointment on April 6, 2022. However, on that day, the grievor sent an email to the employer, indicating that her physician did not believe there was anything further to add to the certificate.
On April 7, 2022, the employer wrote to the union, outlining its concerns and requesting a duty to accommodate meeting with the union and the grievor, as required by the collective agreement. However, the union and the grievor refused to attend this meeting.
As a result, on April 14, 2022, the employer terminated the grievor’s employment for just cause on the basis that she had failed to provide sufficient medical evidence to justify her absence and had failed to cooperate in the accommodation process.
Analysis
The Arbitrator concluded that the employer had just cause for termination of the grievor’s employment. The grievor had not provided the employer with the medical information to which it was entitled, and she had failed to participate in the accommodation process.
The Arbitrator noted that the grievor had received several communications from the employer clearly advising her of what was required, and she was warned that her failure to provide the medical information could or would result in termination.
Key Take-Aways for Employers
This is an important decision for employers. In particular, the award re-affirms the following:
An employer is entitled to know whether a claimed medical absence from work is justified and to have enough medical information to determine whether the injury or illness is a disability that can be accommodated;
An employee may rely on their privacy rights to refuse to provide medical information to their employer but they do so “at their peril”;
The type and amount of medical information to which an employer is entitled may vary somewhat depending on the circumstances but employers are generally entitled to know, among other information, the nature of the illness and the prognosis;
An employee cooperating with a third-party insurer is not the same as cooperation with an employer;
If an employee’s physician refuses to provide adequate medical information, the employee may have a responsibility to see a different physician;
Employees absent from work for lengthy periods of time are responsible to discuss possible accommodations with the employer;
If an employee cannot participate in the accommodation process, it is incumbent on him/her to produce medical evidence to support that position;
Termination for just cause may be justified where an employee withholds medical information legitimately requested from the employer and fails to participate in the accommodation process.