Reacting Badly to Medical Leave Costs Employer
Carol had worked for a small company that provided home care and nursing services for five years. She was the executive assistant to the owner, Donna, and she was in charge of making sure the billings were in order for site visits made by support workers done on behalf of the Victorian Order of Nurses (VON).
Donna became concerned that Carol had not been billing all the site visits to the VON and was losing the company money.
She scheduled a meeting with the VON and Carol to address the issue.
The night before the meeting, Carol called Donna and told her she could not attend because she had a doctor’s appointment. Donna’s response was “f**k me.”
The next afternoon Carol went to work and handed in a doctor’s note indicating she needed a leave for medical reasons. She said there was a very heated conversation with Donna, who tried to insist she attend the VON meeting and told Carol she was on thin ice.
Carol maintained that her leave note meant she could not perform her duties or attend the meeting and went home. The next day Donna showed up at Carol’s apartment to retrieve a company work phone. When Carol answered her door, Donna pushed it open fully and walked past her, uninvited.
She demanded the workplace cellphone and started asking questions about Carol’s medical leave. She tried to grab the cellphone from her but Carol wanted to first remove personal information and put it on her laptop computer.
When she started to go into her bedroom to retrieve the computer, Donna told her she was not allowed to leave the room. Carol ignored her and Donna followed her and hovered over her as she was trying to delete and transfer the information. At some point, she looked out the window and noticed Donna had parked in such a way as to box in Carol’s car.
When this matter went to trial, Donna’s version of that meeting was very different. She said she wasn’t trying to box in Carol’s car and often parked there for short visits to not take up visitor parking in the condominium complex. Donna said she simply entered the apartment and opened the door as Carol held her dog back.
Carol seemed fine but did seem upset when she was asked for her work phone. Donna denied raising her voice. At trial, Carol’s neighbour testified to hearing loud voices from the apartment at the time of the visit and took a picture of Donna’s car blocking Carol’s.
A few days later, Donna sent an email threatening legal action if Carol slandered the company. She also asked her what all the tests had shown and said “so they still haven’t found out what’s wrong with you?” She repeated that message two hours later.
About a month after Carol’s leave began, Donna promoted another employee over Carol to fill her position. When Carol was grocery shopping with a friend one day, she got a call from Donna demanding that she tell her when she was returning from her medical leave.
Throughout this period, Donna was sending many adversarial texts. Carol said she felt pressure to either come back to work or quit and that she no longer felt safe or comfortable at work.
At trial, Donna said her queries about Carol’s health were necessary to ensure she had sufficient staff for the winter. A number of months later, when Carol was still on leave, Donna was served with a statement of claim from Carol.
It came out at trial that Carol had applied to enrol in a business administration program at a local college and a week after her leave began accepted the offer of enrolment. She ended up starting the program a few months later, while still on leave. Carol said that even though she accepted the offer of enrolment, she hadn’t decided until much later whether she was actually going to go.
The judge awarded Carol four months pay in lieu of notice on the basis that Donna’s treatment of her constituted a constructive dismissal. The judge rejected the idea that Carol had somehow abandoned her employment by accepting an academic enrolment offer. She had no obligation to tell her employer until she had made up her mind.
The judge found that Carol’s disability leave clearly was the cause of the bad treatment Donna directed at her employee. Asking an employee about their medical diagnosis and pestering them to return to work is a clear violation of the employer’s obligation under the Ontario Human Rights Code to accommodate a disability leave. The judge awarded Carol $20,000 in general damages as a result of Donna’s behaviour.
Reading this case, my guess is that Carol knew she had made mistakes with the billing and wanted to avoid facing up to the truth.
Donna was right in suspecting that Carol’s medical leave was a sham. But Donna’s belief meant nothing. She had no contradictory medical information and she should have halted all but the most polite communications and simply waited. In my experience, the chances were Carol would eventually resign to go back to school or take another job — and Donna would have owed her nothing.
As right as she might have been, Donna sunk her own ship.
This article was originally published by The Hamilton Spectator.
