By Graeme McFarlane

Many employers have faced the frustrating situation where an employee is away from work on medical leave, but she will not cooperate in managing any potential return.  The employer finds itself trapped between its duty to accommodate on one hand, and the necessity to properly manage its business on the other.  This is a stressful and difficult problem to solve.

Abandonment and Failure to Assist
A recent decision of the Ontario Superior Court should assist in this type of situation.  It found that if an employee does not assist in dealing with her absence, she can be deemed to have abandoned her job in certain circumstances.

In Betts v. IBM Canada Ltd, 2015 ONSC 5298, the employee had been hired as a learning specialist tasked with teaching in IBM’s various offices.  After approximately 10 years of employment, in 2008, Betts suffered from a serious recurring depressive disorder together with severe anxiety.  He was away from work for four months and had qualified for short term disability benefits under IBM’s benefit policy.  That policy required that if the employee’s application for benefits was denied by the benefit administrator (Manulife), the employee had to either return to work or appeal the decision. If the employee chose to appeal, he would be placed on an unpaid leave of absence until the appeal was decided. Betts’ condition improved and he returned to work.

In 2013, Betts suffered from another bout of major depression following the death of his father. He was absent from work and did not notify his manager of this health issues until five days later.  He also informed the company that he expected to be away for more than 10 days.  IBM advised Betts that in order to qualify for benefits a Manulife case manager would have to approve his absence.  Manulife wrote to Betts asking him to complete the claim forms which included an attending physician statement.  Betts was specifically advised that a qualified physician must diagnose him in accordance with the Canadian Medical Association’s standards.

Employee Due Diligence Required
Betts did not follow the instructions provided to him and instead moved to Ontario to be with his fiancé.  He did not notify his employer or Manulife about his change in residence contrary to the terms of the benefit plan.  The employer sent Betts a letter giving him the option of either returning to work or submitting the required information to Manulife.  If Betts chose the latter, he would be placed on unpaid leave until his claim was adjudicated.  If the information was not provided, his claim would be considered to be abandoned.  This letter, however, could not be delivered because Betts had already moved away.

About a month later, Betts started treatment with a psychotherapist in Ontario.  The therapist submitted the attending physician’s statement in which she diagnosed Betts as having a “major depressive disorder.”  She further opined that Betts’ prognosis was good.  Manulife responded by stating that the psychotherapists statement did not fulfil the requirement Betts be confirmed by a medical letter and his application for benefits was denied.  As a result, IBM wrote to Betts and required him to either report to work or appeal Manulife’s decision.  If he did neither, IBM advised him that he would be considered to have abandoned his employment.

Betts informed Manulife that he was going to appeal its decision, but he did not submit any additional medical information to support his claim.  Manulife wrote to him repeatedly and gave him a final opportunity to support his claim approximately six months after his initial departure from work.  IBM eventually gave Betts an ultimatum to either provide the requested information to Manulife or return to work. Betts advised that he would not return by the stated deadline.  However, he did not cooperate with Manulife as requested.  As a result, IBM deemed him to have voluntarily resigned his employment.

In Contest of Wrongful Dismissal
Betts sued and brought a motion for summary judgement seeking damages for wrongful dismissal equivalent to 15 months’ notice, damages for mental distress and punitive damages.

IBM responded by saying that Betts’ failure to return to work—when considered alongside his repeated failure to follow the company disability policy and his relocation to Ontario—demonstrated that he had resigned his employment.

The Court agreed with IBM and concluded that Betts had not been wrongfully dismissed and had voluntarily resigned.  It cited the test as expressed in a B.C. decision as requiring an assessment of whether “viewed objectively by a reasonable person, [the employee] clearly and unequivocally indicate[d] an intention to cease to be bound by the employment contract.”  The Court stated:

It is difficult to imagine what more [IBM] could have done during Betts’ eight month absence from his job in New Brunswick. Many warnings were given, but very few were heeded. [IBM] needed Betts to return to work when he was fit to do so, much like in 2008.  Betts simply had to comply with his obligations under the Plan….

Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment. A failure to follow the directives and requirements under the Plan can be akin to disobedience, which would normally justify dismissal. To the extent that Betts argues that his medical condition itself precluded him from complying with the Plan’s requirements, there is no medical evidence before [the Court] upon which [to] … make such a finding.

The judge further noted that in his view Betts had been fairly treated by IBM, and he would not have awarded punitive damages, nor damages for mental distress even if he was wrong in concluding that Betts had resigned.

This case is helpful as it assures employers do not have to feel trapped, but can expect employees on leave to abide by the benefit plans and follow reasonable and lawful directions. If an employee fails to do so, they can be deemed to have resigned.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace issues.

(PeopleTalk Spring 2016)