Canada: Lessons Learned The Hard Way: Managing Short-Term Absences (Reprise)

Last Updated: December 11 2015
Article by Christopher Andree

Most Read Contributor in Canada, October 2018

Sometimes employers are rewarded for their efforts in being patient but persistent when dealing with absent employees!

Several years ago we wrote an article regarding how employers can proactively and effectively manage the short term absences of their non-unionized employees, and avoid potential liability. At the time, much of the guidance came from cases involving employers who had erred in how they tried to manage such absences. Recently, one employer was rewarded for its effort to manage a short–term absence, and the case provides guidance on how to successfully engage in proactive management of a difficult workplace issue.

Mr. Betts was 35 years of age and had been employed with IBM Canada Ltd. for 15 years as a learning specialist. He suffered from depression and anxiety disorder. His condition caused a four-month absence several years prior to the termination of his employment. At that time he was accommodated and successfully returned to work. Following the death of his father in October 2013, Betts again became ill and was absent from work.

Consistent with its STD policy, Betts was required to submit medical information to Manulife, IBM's third-party adjudicator, to determine his entitlement to STD benefits. Before doing so, and without notification to IBM or the pre-approval of The insurer as required under the STD policy, Betts moved from New Brunswick to Ontario to join his fiancée. Betts then failed to submit all of the required information to the insurer.

During the next seven months IBM displayed great patience and communicated effectively with Betts regarding his absence. The first letter confirmed he did not qualify for STD benefits as a result of the lack of medical evidence, and clearly set out three options; return to work, submit the necessary medical documentation; or be considered to have abandoned his claim for STD benefits. The first letter was not delivered as it was sent to his former address in New Brunswick.

Upon arriving in Ontario he found a new psychotherapist (psychologist). She submitted to the insurer an Attending Physician's Statement based upon her first meeting only days earlier which essentially reiterated Betts' self-reports of his symptoms. The APS did not satisfy the provisions of the STD policy which required Betts to be under the care of a psychiatrist or medical physician licensed by the Canadian Medical Association. To facilitate receipt of the necessary information the insurer offered to deliver the APS to Betts' family physician in New Brunswick. Several days later, upon receiving no APS from the required medical professional, the insurer again denied Bett's claim for STD benefits, and he was advised of his appeal rights.

Betts appealed but submitted no new medical information. His appeal was denied and he was again informed of his options; further appeal, return to work; or be considered to have voluntarily resigned. He indicated an intention to appeal but failed to submit the required information. IBM then held a "workplace facilitation meeting", designed to address non-medical barriers to return to work. IBM also assigned Betts a new manager in response to concerns expressed by him. Finally, IBM extended the appeal period. Betts again failed to submit the required information and was again reminded of his options.

IBM wrote a fifth letter setting out Betts' options and further extending the time to provide the information. It clearly advised that in the absence of submitting the necessary medical information or returning to work, he would be considered to have voluntarily resigned. Betts failed to comply. After seven months IBM took the position that Betts had resigned.

The court confirmed the test for abandonment resembles that of resignation; do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

Although the court found that Betts in fact suffered from depression and anxiety disorder, the court found he was not immune from a finding that he abandoned his employment. "A failure to follow the directives and requirements under the Plan can be akin to disobedience, which would normally justify dismissal."

In the result, Betts' claim of wrongful dismissal was dismissed. IBM was found to have treated Betts fairly by accommodating his failure to comply, extending deadlines on many occasions, repeating the various options open to him, and attempting to steer him with a view to ensuring he completed his application for STD benefits.

Employers often ask why they need to display patience and repeatedly warn employees of the consequences of their failure to provide requested medical information. They also hesitate to address failures to comply with reasonable requests by employees suffering from illness or disability. The outcome in this case provides validation for an approach which is thorough and persistent, but also patient and even-handed. IBM displayed significant patience over eight months with an uncooperative and intransigent employee. In the end, while it undoubtedly incurred legal fees to prove its case, it was rewarded by the dismissal of Betts' action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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