A recent Ontario decision serves as an important reminder to
employers : if an employee fails to provide medical documentation
in a timely manner, any discipline imposed must take into account
the entire context, including the employee's length of service.
Employers – particularly those who are unionized
– who wish to consider terminating the employment of
long-service employees for failure to provide medical documentation
should ensure that they repeatedly follow up with such employees
about providing the documentation prior to terminating.
Mr. Ferreira started working for the Yellow Pages Group Company
as a sales consultant in 1989. On January 12, 2009, Mr. Ferreira
began a short-term disability medical leave with a diagnosis of
severe hypertension and work-related stress. On January 20, 2009,
Mr. Ferreira attended a medical assessment with his physician and
faxed a completed Attending Physician's Statement to Yellow
Yellow Pages' benefit administrator sent Mr. Ferreira's
physician a follow-up questionnaire on February 4, 2009, requiring
more information. The physician did not complete the questionnaire
and, as a result, the benefits administrator terminated Mr.
Ferreira's short-term disability benefit payments on February
16, 2009. The benefits administrator also advised that if
additional medical documentation was not received from Mr. Ferreira
by March 3, 2009, his file would be closed.
On February 18, 2009, Yellow Pages sent a letter to Mr. Ferreira
advising him that since his disability claim had been denied, he
was obligated to return to work by February 20, 2009. Mr. Ferreira
followed up with Yellow Pages by phone. During the call, Yellow
Pages advised Mr. Ferreira that his employment would be terminated
unless he returned to work or provided the required medical
evidence to support his absence by March 3, 2009.
Mr. Ferreira attended at his physician's office on February
25, 2009. The physician wrote a letter to the benefits
administrator explaining that Mr. Ferreira remained unable to work
and sent the letter by regular mail to the benefits administrator
on March 2 or 3. As the letter was not received by the deadline, on
March 5, 2009, Yellow Pages terminated Mr. Ferreira's
employment. Although Mr. Ferreira immediately faxed a copy of his
doctor's letter to Yellow Pages when he was advised of the
termination, this had no impact on Yellow Pages' decision.
Mr. Ferreira grieved the termination through his union, the
Canadian Office and Professional Employees Union. The arbitrator
dismissed the grievance. In the arbitrator's view, Mr. Ferreira
knew he needed to arrange for his physician to provide medical
information within a certain time frame or there would be serious
sanctions. Mr. Ferreira unreasonably left the matter in his
doctor's hands and he did so at his peril.
The Divisional Court dismissed the Union's application for
judicial review of the arbitrator's award.
The Court of Appeal allowed the appeal and remitted the matter
back to a different arbitrator for reconsideration. In the Court of
Appeal's view, the arbitrator failed to consider the matter
contextually and to balance the nature and seriousness of Mr.
Ferreira's misconduct with the severity of the sanction imposed
– termination of employment for a delayed submission of
medical documentation in the context of an unblemished 20-year
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