Canada: Is An Employee's Repeated Failure To Participate In The Accommodation Process Just Cause For Termination?

The duty to accommodate requires the employer, the union and the employee to cooperate.

In Service Employees International Union – West v Wynyard CARRES Inc., the grievor claimed that she required a number of workplace accommodations due to her alleged medical condition, but failed to provide adequate medical documentation to support her claims. Her accommodation requests included working only particular (and varying) hours of the day or night, as well as an exemption from the requirement to obtain a driver's license. The employer operated a care facility and day program which required particular hours of care and the ability to transport residents for their safety as well as quality of life.

The Arbitrator found it was reasonable for the employer to make requests for additional medical information in an effort to understand the restrictions and determine if and how accommodation was possible. When the grievor repeatedly failed to provide adequate medical information in response to the employer's numerous requests, it was reasonable for the employer to require the grievor to attend an Independent Medical Examination.

The Arbitrator further concluded that the grievor's refusal to participate in the Independent Medical Examination process left the employer with no choice but to conclude that the grievor was declining to participate in the accommodation process, thereby abandoning her position.

The duty to accommodate is a multi-party inquiry in which the employer, the employee seeking accommodation and the union have important roles to play.

The employee is responsible for informing the employer of the nature of their illness or condition and the limitations and restrictions on their ability to perform workplace duties as well as provide sufficient and reliable medical information.

The Arbitrator concluded that the employer did nothing unreasonable in the accommodation process and that the grievor did not reasonably co-operate by failing to provide the necessary information. As such, the employer did not breach the duty to accommodate and was justified in terminating the grievor.

Employers should keep in mind that the employer in this case could not safely accommodate the grievor's alleged restrictions due to unique safety factors in workplace. Moreover, the grievor and her medical practitioners were found to be uncooperative in the accommodation process even when the grievor was clearly informed that her job was on the line.

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