When facing the difficult decision to end an employee's
employment for cause, it is very important not to jump to
conclusions. Although this may sound obvious, the case law is
replete with examples where employers used the illadvised strategy
of "ready, fire, then aim." Such decision-making often
leads to expensive and embarrassing public decisions.
Such was the situation in the recent decision in United
Steel Workers, Local 7656 v Mosaic Potash Colonsay ULC, 2014
CanLII 23963. In this decision, the arbitrator reinstated a
short-term employee who had been fired for dishonesty and misuse of
sick leave after a dispute about the use of vacation time. This
reinstatement occurred even in circumstances where surveillance
showed the grievor working at his landscaping business while off on
Communications Key to Stress-Related Leave
The grievor was a heavy machine operator at a potash mine. He
operated a large underground rock cutting machine. He had 120 hours
of banked vacation time and put in a request for two vacation
periods totalling 70 hours. The employer informed the employee that
he was only able to take one of the periods because the company
required all employees to hold 80 hours of vacation time to
coincide with a scheduled mine shut down. There was some confusion
in communicating this message to the employee, and when the
employee sought clarification, the employee's supervisor became
very hostile and aggressive. As a result, the employee became very
upset and did not come in the next day for stressrelated
The employee followed the administrative procedures necessary to
access sick leave benefits and provided a doctor's note
describing his limitations. When the medical information was
provided to the company, the administrator immediately disputed the
claim and told the employee that "it was not going to take
this." This exchange upset the employee further and he
delivered an additional doctor's note recommending that the
employee take three weeks off work.
The employee stayed off work during this period. Even though
this sick leave coincided with the original period requested as
vacation, the employee did not attend the activities he had planned
because he was too stressed to do so. When the three week period
had ended, the employee was cleared to return on modified duties so
as to determine whether the medication he had been prescribed would
interfere with the operation of heavy machinery.
Suspicions, Investigations and Suspensions
The employer was immediately suspicious of the employee's
sick leave claim and hired a private investigator to conduct
surveillance on the grievor. They found the grievor performing
physical work for the landscaping business he operated on the side.
The employer had full knowledge of the employee's business, and
indeed he used his landscaping truck to commute to and from the
When the employee returned to work he was immediately suspended
and the employer demanded detailed information regarding the
employee's diagnosis and the details about his work activities.
The employee provided a full copy of his medical file and informed
the employer about his landscaping work while he was on sick
Look Before You Leap
Upon receipt of this information and without asking for any
additional information, the employer terminated the grievor
claiming "dishonesty and duplicity with respect to [his]
alleged sick leave." In addition, the employer wrote to the
disability provider and at tempted to have it reclaim the sick
leave benefits paid to the employee.
At the hearing, the employer maintained that the grievor had
sought sick leave benefits after his vacation request had been
denied and that he had performed personal work activities that were
incompatible with his claim that he was disabled from performing
his job duties.
The arbitrator disagreed and took a dim view of the
What this case highlights for HR professionals and managers is
the importance of communicating with clarity, and a modicum of
compassion, all policies regarding organizational restriction of
vacation-time during key periods. Moreover, as with "call
before you dig" or "look before you leap,"
"talk to doc before you fire" goes a long to avoiding
embarrassing scenarios as such.
After all, a little time in someone else's garden on stress
leave, might have been just what the doctor ordered.
Originally published in People Talk – Fall 2015
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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.
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