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Employee’s failure to provide medical documentation must be considered in context: Ontario Court of Appeal

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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 Pages.

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 employment relationship.

Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448 (CanLII)