An employee who obtained a doctor's note to justify his
desire not to work overtime during a labour dispute, deserved a
three-day suspension, an arbitrator has held.
After the employer announced that it would be reducing the
amount of time off accrued by certain employees, employees
responded in protest by dramatically reducing the amount of
overtime worked. The employer then sought and obtained an
order from the British Columbia Labour Relations Board, ending the
employees' overtime ban because it was effectively an unlawful
The day after the employer informed employees of the scheduling
that would result from the court order, the employee saw a doctor
who issued a note recommending that the employee not work
overtime. The employee had a history of working a significant
amount of overtime up until he obtained that doctor's note. The
employer dismissed the employee for relying on the doctor's
note to permit him to participate in an unlawful work stoppage
(overtime ban). The employer argued that the employee had, by
obtaining the doctor's note, "disingenuously sought to get
around the" Labour Relations Board order.
The arbitrator decided that the employee had indeed sought to
avoid working overtime due to labour relations tensions, and it was
his subjective statements regarding his health that the doctor
relied upon in writing the "no overtime" note.
However, he had been sincerely feeling stress at work. He had
relatively long service of about fifteen years, and good
performance evaluations. As such, dismissal was
excessive. The arbitrator instead imposed a three-day
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
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