Post-dismissal doctor’s report was relevant: disabled employee reinstated for further consideration of possible accommodation, after evidence that medical condition improved

An employee whose medical condition had improved both before and after termination has been reinstated for further consideration of possible accommodations, after an arbitrator relied on a doctor’s assessment done after dismissal.

The employee was 67 years old and had been away from work for 14 months when dismissed after 18 years of employment.  He had undergone surgery, 14 months before his dismissal, for buildup of plaque in his arteries.  Cognitive deficits were noted during his recovery period.  About 11 months before his dismissal, a doctor who worked for the employer’s contracted health services provider, found that he had “slow speech, slow processing, slow thinking”.  Two months later another doctor found that, in contrast with the previous doctor’s assessment, the employee had “continued to improve both physically and cognitively”.  Two months later, a neuropsychological assessment concluded that it was “unlikely that [the employee] will be able to safely return to work” in his position.

Two weeks before the employee’s dismissal, the employee’s family doctor provided a report recommending that the employee be provided with “a gradual return to work” because he was not “totally disabled from all work duties”.  The doctor asked that the employee be accommodated in a sedentary position.

The arbitrator admitted, into evidence, another neuropsychological assessment, by a different specialist, conducted a few months after the employee’s termination, which found that the employee had recovered and did not have “Vascular Cognitive Impairment” which the previous neuropsychological assessment had presumed.  The new assessment, although conducted after termination, was relevant because it was consistent with pre-termination assessments which had shown some improvement.  The employee’s condition at the time of termination was unclear until the post-termination assessment report was received.

The arbitrator therefore determined that the employee’s condition had improved at the time of termination and it was not reasonable to conclude that there was no reasonable prospect of the employee being able to regularly attend work. The arbitrator reinstated the employee for the purposes of having his condition considered by a “Joint Medical Placement Committee” which was provided for in a letter of understanding between the employer and the union.

In a subsequent decision handed down after the Joint Medical Placement Committee considered the employee’s situation, the arbitrator decided that it would cause undue hardship to put the employee back into the workplace.  In particular, an Occupational Therapist had concluded that the employee:

“is not suited for safety sensitive work. In my opinion, Mr. Voykin should not be placed in any jobs that require attention to detail, correct and quick responses to information and/or dividing/alternating attention between two or more tasks.

Adaptations or accommodations would not allow him to compensate for these difficulties….”

Further, the union had not identified any jobs in which the employee could be appropriately accommodated.  As a result, the employer had satisfied its duty to accommodate. The employer was therefore justified in ending the employee’s employment.

Rio Tinto Alcan Inc. v Unifor, Local No. 2301, 2015 CanLII 100020 (BC LA)

Subscribe and stay updated
Receive our latest blog posts by email.
Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

Full bio