Federal Appeal


Employment

WRONGFUL DISMISSAL
Reasonable for employer to request further medical information from worker upon return to work

Appellant worker was employed by respondent employer as operator of grain terminal for approximately 20 years. Worker left work ill and was hospitalized. Worker filed claim with Workplace Safety and Insurance Board (WSIB) claiming that symptoms he experienced were possible result of toxic allergic reaction to grain dust. Worker notified employer that his doctor advised him he could not return to work due to health concerns. WSIB informed worker that evidence did not establish occupational disease. Worker presented two-line note from family doctor to employer that stated that he was capable of returning to his job. Employer told worker he could not return to work until he presented better doctor’s note. Employer placed worker on temporary layoff. Seasonal lay-offs occurred every year. Worker filed complaint of unjust dismissal. Adjudicator determined that employer had constructively dismissed worker and that dismissal was unjust. Employer applied for judicial review. Judge found that it was clear that worker’s claim only related to conversation he had with employer that he could not return to work until he provided better doctor’s note and not to seasonal lay-off notice. Judge found that adjudicator’s decision was unreasonable because it had nothing to do with conversation. Adjudicator’s decision was set aside. Worker appealed. Appeal dismissed. Judge properly selected reasonableness as standard of review. Judge properly found that worker’s complaint related to conversation he had with employer concerning providing better doctor’s note. Adjudicator properly outlined test for constructive dismissal, but there was no basis upon which he could have reasonably concluded that employer constructively dismissed worker. Conversation that occurred between parties did not amount to change in fundamental term of worker’s employment. It was clear that worker continued to have substantial health problems. In circumstances, it was reasonable for employer, who had obligation to ensure safety of its employees, to request further medical information from worker upon his return to work. Two-line doctor’s note worker provided did not contain enough information for employer to satisfactorily conclude that worker could safely return to work.

Donaldson v. Western Grain By-Products Storage Ltd. (Mar. 4, 2015, F.C.A., Johanne Gauthier J.A., David G. Near J.A., and A.F. Scott J.A., File No. A-360-12) Decision at 218 A.C.W.S. (3d) 855 was affirmed.  251 A.C.W.S. (3d) 143.

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