When a union member has the right to hire a lawyer.

QUESTION: I worked in a large food processing plant for eight years before I was terminated. As a result of a degenerative back condition, my doctor limited how much weight I could lift at any given time. I asked to be moved to one of a number of positions that could accommodate this restriction but my employer refused. They said the positions were already filled but all those people had less seniority than me. They put me off work ill and six months later terminated my employment. I grieved the termination through my union. Eventually the employer offered to pay me six months’ wages in settlement. The union said if I did not accept the offer they would drop the grievance. I suspect the union executive does not want to upset the more junior union members. Do I have to sign? What can I do?

ANSWER: This is one of those rare circumstances where you have the right, even though you are a union member, to hire a lawyer to represent you. Don’t bother with a complaint to the Ministry of Labour that the union is not fairly representing you, those complaints are mostly a waste of time. File a complaint with the Ontario Human Rights Tribunal against both the employer and your union. The Tribunal will take jurisdiction over the matter. It can go as far as ordering you reinstated to an appropriate position with back pay and an award of general damages on top. 99% of the time union members have no other recourse than to work through their union in dealing with any employment problems. The human rights context can create an exception to that rule. Even in situations where the union appears to be on your side it can be useful to retain a lawyer who specializes in human rights to get a second opinion about your case.

QUESTION: I have an employee who has been off for four months now who I suspect of malingering. Once a month I get a note that is extremely brief from their doctor indicating that they are medically unfit to return to work. What information can I require the employee to provide me about their condition?

ANSWER: While it is rare that you would be entitled to ask for an actual diagnosis, you can ask for a doctor’s note which clarifies the following:
1. That the employee has a disability
2. The limitations or needs associated with the disability which relate to their job functions;
3. An indication of whether the person can perform the essential duties or requirements of their job; and
4. The type of accommodation that may be needed to allow the person to fulfill the essential duties of their position.

You are not entitled to confidential medical information such as the diagnosis, symptoms, or treatment unless those things directly relate to the accommodation being sought. I once advised an employer who had significant performance concerns with an employee who had just returned from a five month disability leave. The employer, appropriately, had no idea why she had been off. What it did know is that a previously productive and efficient employee suddenly became unfocused and apparently, unmotivated. The employer gave her a letter which outlined gently but firmly the changes in her performance and deficiencies they were observing. It asked her to show that letter to her doctor and obtain a note indicating whether any of these issues were related to her recent illness and absence. The letter made it clear that if that were the case, it would do everything it could to accommodate her or consider putting her off work ill again until she could perform the core functions of her job properly, like she used to. It also made it clear, however, that if these deficiencies and performance issues were not related to any disability, they would have no choice but to engage in a progressive discipline process. As it turned out, the performance issues disappeared so the matter resolved itself. This had always been a good employee and the employer’s concern was that there was some underlying illness affecting her focus and productivity. That appropriate concern coincided with their obligation pursuant to the Ontario Human Rights Code not to be willfully blind to those potential issues.

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
Ed Canning
Ed Canning
P: 905.572.5809