In a recent decision, an Adjudicator held that there was cause for an employee's dismissal because he refused to cooperate with his employer's efforts to accommodate his work-related limitations arising from a disability.
The Adjudicator in Wan v. Intek Communications Inc. [Wan] dismissed Qian Wan's unjust dismissal complaint against his employer, Intek Communications ("Intek"), because he found that Mr. Wan breached his duty to cooperate in the accommodation process by refusing to participate in an independent medical examination ("IME"). The Adjudicator also held that this was cause for Mr. Wan's dismissal.
Wan affirms that employees have a legal duty to cooperate with their employers in the accommodation process and that employers can require employees to participate in IMEs. This decision also confirms that an employee's refusal to participate in an IME can establish cause for their dismissal.
Mr. Wan was hired by Intek in May 2007 as a Cable Technician, which involved providing technical services such as cable installation and maintenance for phone and internet connections at customers' homes. Notably, Mr. Wan suffered a series of workplace injuries between October 2013 and January 2016 which interfered with his ability to perform his Cable Technician duties, and he filed multiple claims with the Workplace Safety Insurance Board ("WSIB") as a result.
As part of the WSIB claims process, Mr. Wan completed a Functional Abilities Evaluation ("FAE") in July 2015. The FAE indicated that Mr. Wan could perform the core duties of his Cable Technician role with "micro-breaks" to rest his ankle for a minute or two as needed throughout the workday. Subsequently, in August 2015, the WSIB determined that Mr. Wan had "recovered to the point where no further significant improvement" in his condition was expected. His claim was closed, and he continued to be accommodated in his Cable Technician role in accordance with the 2015 FAE.
Mr. Wan later re-injured his ankle in March 2016, and Intek accommodated him with modified duties as a Warehouse Assistant performing sedentary office work and micro-breaks as needed, despite that Mr. Wan did not provide any new medical documentation at the time. Over a year later, on June 6, 2017, Mr. Wan received a written warning for allegedly abusing his micro-break privileges by taking excessive breaks. Later that same day, Mr. Wan provided Intek with documentation from his family doctor - Dr. Liu - recommending that he take 5-minute breaks every 20 minutes. Notably, Dr. Liu's recommendation was seemingly based solely on Mr. Wan stating that "his pain [was] worse", and it did not appear to be based on an assessment of Mr. Wan's modified duties as a Warehouse Assistant. As a result, Intek continued providing Mr. Wan with accommodations based on the 2015 FAE.
Subsequently, in February 2018, Mr. Wan demanded that Intek follow a written schedule requiring a 5-minute break after every 20 minutes of work â€“ in addition to his regularly scheduled breaks â€“ such that he would have over 2 hours of rest during every 8-hour shift. In response, Intek requested further medical information from Mr. Wan to support his request. Mr. Wan then provided Intek with documentation from Dr. Liu recommending that he take 5-minute breaks every 20 minutes for at least the next 5 years. Notably, when Intek followed up with Dr. Liu for clarification, she stated that this recommendation was based on the 2015 FAE and Mr. Wan stating that his pain had gotten worse, rather than an up-to-date medical examination. Crucially, the 2015 FAE was 3 years old at this point and it recommended microbreaks of 1 to 2 minutes as needed, rather than a rigid schedule of 5 minute-breaks every 20 minutes. Intek questioned the validity of Dr. Liu's assessment as a result, but its repeated attempts to obtain the up-to-date medical information that it required for accommodation purposes were unsuccessful. Consequently, in July 2018, Intek requested that Mr. Wan participate in an IME.
Mr. Wan repeatedly refused to participate in the IME over the next several months on the basis that he felt that an IME was unnecessary in the circumstances, and that Dr. Liu could provide Intek with any information required. Mr. Wan failed to attend IMEs that Intek scheduled on multiple occasions during this time, despite the fact that Intek repeatedly advised him they were mandatory. Finally, after Mr. Wan refused to attend an IME on June 4, 2019, Intek terminated his employment for cause on the basis of insubordination due to Mr. Wan's refusal to cooperate in the accommodation process. Consequently, Mr. Wan made an unjust dismissal complaint against Intek under the Canada Labour Code.
The Adjudicator's Decision
Adjudicator Gordon Luborsky dismissed Mr. Wan's complaint, holding that there was cause for his dismissal because he breached his duty to cooperate in the accommodation process by refusing to take part in an IME.
Luborsky held that employees and employers are required to work collaboratively in the search for reasonable accommodation of an employee's disability under human rights legislation. Luborsky further held that "the process of searching for reasonable accommodation may necessitate disclosure of sensitive medical information to the employer, and the employee's participation in medical exams, where a balance must be struck between the employee's privacy interests and the employer's right to know sufficient details of the disability to facilitate an appropriate accommodation short of undue hardship." Moreover, Luborsky held that, where an employee has provided an employer with inadequate medical information after repeated requests, the employer may require the employee to undergo an IME if reasonable in the circumstances. Where the employee refuses to participate in an IME in such circumstances, it may establish just cause for the employee's dismissal, particularly where there has been an irreparable breakdown in the employment relationship. Furthermore, where an employee unreasonably refuses to cooperate with the employer in the accommodation process or turns down reasonable accommodation, "then the employer's duty is at an end and [dismissal] is the inevitable result."
Applying the law to the facts, Luborsky held that there was cause for Mr. Wan's dismissal because he unreasonably and repeatedly refused to cooperate with Intek in the accommodation process, which caused a breakdown in the employment relationship. In reaching this conclusion, Luborsky found that it was reasonable for Intek to require an IME when it became apparent that Dr. Liu's recommendations were based on outdated medical information from the 2015 FAE and its repeated attempts to obtain up-to-date medical information from Dr. Liu were not successful. Furthermore, Luborsky held that Mr. Wan unreasonably refusing to participate in the mandatory IME after Intek had repeatedly tried to obtain the medical information it required constituted insubordination which, along with Mr. Wan taking no responsibility for the breakdown in the employment relationship caused by his actions, established cause for his dismissal.
In the result, Luborsky declined to reinstate Mr. Wan to his employment or award him any damages, and he dismissed Mr. Wan's unjust dismissal complaint.
The Bottom Line
Wan is a positive decision for employers because it affirms that they can require employees to participate in IMEs as part of the accommodation process where it is reasonable in the circumstances and, that an employee's refusal to participate in an IME can establish cause for their dismissal.
However, Wan also makes it clear that whether it is reasonable for an employer to require an employee to participate in an IME depends on all the circumstances, and a balance must be struck with the employee's privacy interests. Accordingly, employers would be well advised to seek legal advice specific to the circumstances prior to requiring an employee to attend an IME or terminating their employment for refusing to attend.
If you require any assistance obtaining adequate medical information from an employee, responding to an accommodation request or assessing ongoing accommodation, please do not hesitate to contact us for expert legal advice and guidance.