AccounTrust (post until Sept. 30/19)

Littler LLP: Sari Springer, Harrison Brown

Canada: how to manage unresponsive employees on leave

Canadian law clearly requires employers to accommodate employees with disabilities unless it causes an undue hardship. But how are employers to deal with employees on medical leave who do not communicate with the employer? At what point do silent employees effectively abandon their jobs?

The Federal Public Sector Labour Relations and Employment Board decision in NA v Treasury Board (Department of Indigenous and Northern Affairs) shows just how hard it is for employers to prevail in such circumstances.

The decision concerns an employee who did not communicate with her employer while she was on 15 months of medical leave to treat a psychiatric disability.

Prior to taking leave, the employee complained to the director of the organization that her supervisor was harassing her. The employer investigated the complaint but found it was meritless. The organization then decided not to approve the employee's request to pursue part-time studies while she worked.

The worker subsequently took an approved leave of absence for medical reasons. During her leave, the employer discovered she was working elsewhere and pursuing graduate studies.

The organization repeatedly attempted to contact the worker to find out what was going on, but the employee did not respond. The employer eventually considered her to be on unauthorized leave but never effectively notified her of that. The organization then fired her, determining she had abandoned her job.

The arbitrator found that the worker failed in her duty to communicate with the employer. But the arbitrator held that the discharge was still unreasonable and that the employer discriminated against the employee because of her psychiatric disability. 

Mediation might have proven useful following the investigation. According to the arbitrator, the employee was indisputably entitled to her leave, yet the employer was entitled to a response from the worker to its inquiries, as the employer's questions concerned her seemingly irreconcilable behavior. Nevertheless, along the way, the employer made a few mistakes that, despite the employee's failure to respond, resulted in a finding of liability against it.

Lessons for Employers

These mistakes provide valuable learning opportunities to other employers that may find themselves in a similar situation:

  • Respond to potential mental health issues. By his own admission, the director had known for quite some time of the negative impact of the employee's mental illness on her work. She was apparently "unable to concentrate, confused, anxious, withdrawn and disruptive." These performance deficiencies indicated signs of a mental disability, which might have prompted accommodations. Once Canadian employers become aware of a potential disability, they must accommodate.
  • Address complaints of harassment, as well as reactions to investigation results. The employee in this case was upset by the dismissal of her harassment complaint. Yet the employer mistakenly assumed that the employee understood the decision to dismiss. In this situation, mediation might have proven useful following the investigation, to help explain the outcome and prepare the parties to work together.
  • Consider how to leverage available resources. It was clear early on in the employee's leave that she wasn't communicating. The employer should have alerted her that this was unacceptable. While the employer attempted to contact her through various means, the director conceded that there were many occasions on which the bargaining agent for the worker should have been contacted but was not.
  • Determine the reason for the silence. There may be legitimate reasons why an employee on approved leave because of a disability is not communicating. An employer that cannot establish contact with the worker should not assign fault where it might not exist. Before taking disciplinary action, an employer should try to contact the worker, perhaps on several occasions and through assorted communication channels. The employer should inform the worker that he or she may be subject to possible disciplinary action if the employee fails to respond. These attempts should be documented.
  • Do not terminate employment without careful consideration. Firing an employee for chronic absenteeism or abandonment is difficult to defend in Canadian courts, particularly when there is a diagnosed illness. Employers should be aware that a decision to discharge under these circumstances will be subject to scrutiny and may be found discriminatory, as was the case here.

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