A recent Quebec decision has confirmed that fatigue was not
considered a disease for the purposes of an employee's
entitlement to disabilty benefits, under a collective
The Plaintiff, a unionized administrative assistant, contested
the employer's refusal to recognize that she was disabled
within the meaning of the collective agreement, for the period
ranging from August 18th, 2010 to January 17th, 2011 and the
non-payment of disability benefits for that period.
On February 25th, 2010, the plaintiff went off work due to
multiple surgeries that took place during the months of February
and May of the same year. In July, she received a medical note from
her doctor extending her leave until the end of August as a result
of post-operation fatigue.
The employer, who until then had not contested the
employee's leave, exercised its right under the collective
agreement to have the Plaintiff examined by a doctor of its choice.
The examination took place on August 11, 2010, and the doctor
concluded that there were no restrictions to the Plaintiff
returning to work since there were no disabling pathologies. The
employer thus informed the Plaintiff that her condition no longer
corresponded to the definition of disability stipulated in the
collective agreement and asked her to return to work on August
18th. However, the Plaintiff chose instead to follow her
doctor's advice to only return to work on a progressive basis
commencing September 22nd, 2010. The employer allowed the graduated
return to work and the employee returned, on a full-time basis as
of January 17th, 2010.
The employee grieved the non-payment of benefits following
August 12, 2010. However, the arbitrator concluded that from that
date, the Plaintiff's absence from work was no longer due to a
medical condition. It was based on persistent fatigue that her
doctor had noted in previous and subsequent consultations during
the months of July, September and October of 2010.
The jurisprudence establishes that the right to disability
benefits depends on three (3) conditions: 1) the incapacity is
caused by a disease, 2) which requires medical monitoring and 3)
that makes the person unable to perform routine tasks associated
with his/her position or any other similar position. When an
employer demonstrates that at least one of these three conditions
no longer exits, the employee's benefits will cease.
In the present case, the term "disease" was not
defined in the collective agreement. As a result, it had to be
interpreted according to its usual and common meaning, which is an
organic or functional alteration of the state of health. Fatigue,
being a state of increased discomfort and decreased efficiency
resulting from prolonged or excessive exertion, does not fit into
That being said, from August 18th, 2010, the Plaintiff's
absence from work could no longer be medically justified.
Therefore, she was not entitled to disability benefits under the
collective agreement for that period.
Moreover, the fact that the employer allowed the Plaintiff to
make a progressive return to work did not constitute a recognition
of a disability but rather a compromise or an accommodation
following the recommendation of her doctor. For all these reasons,
the employee's grievance was denied.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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