Sunday, 6 September 2015

Employee on Disability Leave Deemed to Have Abandoned Employment After Failing to Respond to Employer

Image: istock/Imilian

“You have the right to remain silent.” Those seven words are a fundamental principle of the Canadian criminal justice system. But what about the intersection of disability leave and employment law? Does an employee have the right to remain silent when his or her employer asks for an update on his or her health or an estimate of when the employee may be able to return to work?

While a lot of workers may believe that the answer to those questions is “yes”, in the case of Betts v IBM Canada Ltd., 2015 ONSC 5298 (CanLII) the Ontario Superior Court of Justice held otherwise.

Writing on behalf of the court, the Honourable Justice Diamond held as follows, “Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment.”


The case concerned a claim by the plaintiff employee for wrongful dismissal. The employer defended on the basis that the employee had abandoned or voluntarily resigned from his employment effective June 30, 2014.

The plaintiff commenced his employment with the defendant on or about March 8, 1999. As at the date when his employment ceased, the plaintiff was 35 years old and had worked for the defendant for fifteen years.

As a regular, full-time employee of the defendant, the plaintiff was eligible to apply for benefits under the defendant’s short term disability plan (the “Plan”).

When an employee meets the definition of “disability” under the Plan, he/she will be entitled to a medical leave of absence and receive short term disability benefits.

The plaintiff’s evidence was that since approximately 2008, he has suffered from major recurring depressive disorder, and anxiety disorder, for which he takes prescribed medication and receives therapy. He further testified that he has suffered two major depression episodes, one during September 2008 - January 2009, and another one during October 2013 – July 2014 (the latter episode giving rise to the current dispute between the parties).

The plaintiff’s father passed away in 2013. The plaintiff’s depression symptoms worsened and became similar to his previous major depression episode in 2008. The plaintiff testified that while he tried to work through his condition, his symptoms became unbearable and on October 16, 2013, he ceased reporting to work in New Brunswick for health reasons.

The plaintiff contacted his manager on October 21, 2013, to report that he had missed five days of work due to health reasons, and that he anticipated his absence to extend beyond 10 working days.

Manulife, the company responsible for administering IBM’s disability plan, was informed of the plaintiff’s absence. The defendant sent the plaintiff a letter dated October 22, 2013, which advised him that the Plan required a Manulife case manager to approve the plaintiff’s absence from work.

On October 30, 2013, Manulife sent the plaintiff a letter requesting that he contact Manulife by November 5, 2013 to submit the necessary forms (which were enclosed) including an “employee declaration” and “attending physician’s statement”. That letter specifically stated that Manulife “respects and recognizes the role of [his] physician and the return to work process as outlined by the Canadian Medical Association (“CMA”) Policy Statement”.

This policy states that [his] physician’s role was to “diagnose and treat [his] illness or injury rather than to approve absences from work”. The defendant required a medical physician to assess and diagnose the plaintiff, and provide a plan of treatment. This policy is clear and understandable, as the goal for all parties is to hopefully ensure that the plaintiff receives proper treatment for any illness so that a return to work is possible. This is, of course, exactly what happened in 2008.

In November 2013 the plaintiff moved from New Brunswick to Ontario, and began residing full-time with his fiancĂ©e. This move was carried out without informing the defendant or Manulife. Further, this move was in contravention of the defendant’s policy (as articulated in the October 22, 2013 letter) that convalescing away from the plaintiff’s usual place of residence must be first approved by a Manulife case manager in order to ensure it would not affect potential treatment or prevent the plaintiff from participating in return to work planning.

During this period, the plaintiff was still being paid his salary. No medical information was provided by the plaintiff or his family doctor. On November 28, 2013, the plaintiff delivered an e-mail to Manulife advising that his family doctor was unwilling to complete the attending physician statement because she was not involved in his decision to initiate a short term disability leave request in the first place.

The employer sent the plaintiff employee five letters between December 2013 – June 2014, all of which outlined the plaintiff’s options in the face of his refusal and/or inability to comply with the Plan’s requirements. In several of these letters, the defendant employer advised the plaintiff that in the absence of pursuing one of the available options, he would be held to have voluntarily resigned from his employment.

The first letter was sent on December 2, 2013 after Manulife decided that the plaintiff did not qualify for short term disability benefits (based upon a lack of medical evidence). The defendant gave the plaintiff three options.

  1. return to work by December 10, 2013 or submit the necessary medical documentation;
  2. if the medical documentation was submitted, the plaintiff would be placed on unpaid leave of absence effective December 10, 2013; and
  3. if the medical documentation was not submitted by January 6, 2014, the defendant would consider the plaintiff to have abandoned his claim for short term disability benefits.

By letter dated January 17, 2014, the defendant formally advised the plaintiff that his claim for short term disability benefits was denied, and provided the plaintiff with two options: appeal the decision, or return to work by January 27, 2014. The defendant further advised the plaintiff that if he failed to submit the necessary medical documentation to support the appeal by February 17, 2014, the defendant would consider him to have abandoned his appeal at which point he would be required to return to work or be considered to have voluntarily resigned.

The defendant confirmed the denial of the plaintiff’s first appeal in a letter dated February 26, 2014. That letter followed the same format as the previous option letters, and informed the plaintiff that his options were to return to work or appeal the decision for a second and final time. Once again, the defendant advised him that if he failed to submit the appropriate documentation by the required deadline, the defendant would consider him to have abandoned his appeal and in the absence of returning to work would be considered to have voluntarily resigned.

While the plaintiff did advise Manulife of intent to appeal a second time, he missed the deadline for filing the documentation.

The plaintiff continued to refuse to provide any further appeal information despite his stated intention to do so. By letter dated April 24, 2014, the defendant gave him a further extension to May 2, 2014 to submit the required appeal documentation failing which he would be required to return to work on May 5, 2014. This was the fourth absence option letter delivered to the plaintiff since early December 2013.

On May 2, 2014, the plaintiff delivered an e-mail to the defendant advising that he would not be providing any further medical information to support his second and final appeal. The plaintiff further advised that he would not be returning to work by the defendant’s imposed deadline of May 5, 2014, and would be providing a “doctor’s note” to this effect.

On May 15, 2014, the defendant wrote a fifth option letter to the plaintiff advising that he had until June 9, 2014 to submit additional medical information for his second and final appeal. There was no legal obligation upon the defendant to further unilaterally extend the deadline for the receipt of such documentation. While the letter also offered the plaintiff a personal leave of absence until the end of June 2014, he was advised, once again, that in the absence of submitting the necessary medical information by June 9, 2014, or returning to work by June 30, 2014, he would be held to have voluntarily resigned.

The plaintiff did not comply with the extended deadline. On June 20, 2014, the plaintiff delivered an e-mail to the defendant advising that he would not be returning to work by June 30, 2014 because “his doctor’s note still applied”.

The plaintiff had been absent from work for over 8 months. As he failed to submit the documentation required to support the second appeal, and failed to return to work by June 30, 2014, the defendant chose to process the plaintiff’s separation as a voluntary resignation effective June 30, 2014, a result which the plaintiff had been warned about in the five absence option letters.


In deciding that the employee had voluntarily abandoned his position, the Honourable Justice James F. Diamond wrote the following in his reasons for decision:

[57] While an actual resignation must be clear and unequivocal, the test for abandonment is similar to the test for resignation: do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

[58] The plaintiff seeks to import a subjective element into this test, and relies upon his affidavit wherein he testified that it was never his intention to resign from his employment. In my view, such evidence given in response to the defendant’s motion for summary judgment is arguably self-serving, but certainly not persuasive in the face of the objective facts and the documentary record.

[59] The defendant relies on three objective factors, which the defendants submits taken singularly or collectively, confirm that the plaintiff indeed abandoned or resigned from his employment:

(a) a failure to report to work and fulfill his employment obligations for over 8 months (including a failure to heed the various warnings in the five option letters);

(b) a failure to follow the policies and procedures set forth in the Plan regarding applications for short term disability benefits and appeals therefrom; and

(c) a voluntary and undisclosed relocation from New Brunswick coupled with his lack of intention to return to New Brunswick and resume his employment with the defendant.

[60] I agree with the defendant. All of the above objective factors are indicia that the plaintiff abandoned his employment. While no one, including this Court, doubts that the plaintiff suffered from depression and anxiety disorders, having successfully obtained and concluded a previous leave of absence while on short term disability, the plaintiff was well aware of what was required of him, and the reasons why the defendant maintained its short term disability policy (a policy of which the plaintiff successfully availed himself in 2008). The absence option letters could not have been clearer, and simple and consequential language was used on each occasion. Deadlines were extended when the defendant was under no obligation to do so.

[61] It is difficult to imagine what more the defendant could have done during the plaintiff’s 8 month absence from his job in New Brunswick. Many warnings were given, but very few were heeded. The defendant needed the plaintiff to return to work when he was fit to do so, much like in 2008. The plaintiff simply had to comply with his obligations under the Plan, which the plaintiff confirmed on cross-examination applied to his situation.

[62] 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 the plaintiff argues that his medical condition itself precluded him from complying with the Plan’s requirements, there is no medical evidence before me upon which I could make such a finding.

In the result, the plaintiff’s case was dismissed.


The facts of this case were particularly important. It is partially for that reason that the statement of them is so long in this post.

Fatal to the plaintiff’s case was the fact that he failed, or refused, to see a physician. Although Mr. Betts was providing notes from a “doctor,” that person was found not be a “physician” – which was the requirement of the Plan.

For the reasons more fully set out in the takeaway sections, I must agree with the court’s decision. The employee in this case did nothing to help himself. The employer sent him several letters, advising him what he was required to do. None of the employer’s requests was onerous and the plaintiff was demonstrably able to see a health care provider. Moreover, this was not the plaintiff’s first rodeo; he had received benefits before and knew the rules.

Although a painful result for the employee, it is one that, on the facts, appears correct.

Takeaways for Employees with Labour Pains

The key takeaway from this case for employees is that being on disability leave does not transport one to Superman’s fortress of solitude. As the Ontario Human Rights Commission notes on its own page concerning the duty to accommodate:

The accommodation process is a shared responsibility. Everyone involved should co-operatively engage in the process, share information and avail themselves of potential accommodation solutions.

The person with a disability is required to:

  • advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
  • make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
  • answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
  • participate in discussions regarding possible accommodation solutions
  • co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
  • meet agreed-upon performance and job standards once accommodation is provided
  • work with the accommodation provider on an ongoing basis to manage the accommodation process
  • discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.

It is simply not enough for an employee to take the position that he or she is to be absent from work for medical reasons. Employee’s must engage in the process.

This post started by quoting the well-known ‘right to remain silent.’ However, the point to be made is that the right to remain silent is not absolute; one cannot always refuse to say anything in all situations. In the employment law realm, there will be occasions in which the employee is obligated to say something in order to substantiate a leave of absence.

Takeaways for Employers with Labour Pains

While the case will undoubtedly be seen as a positive for employers, it is important to note the lengths to which the employer went in this case. The employer essentially held the position for eight months. It sent the employee five letters; it tried. An employer’s failure to put in such effort could easily have resulted in a finding for the employee.

And, while we are discussing the obligations placed on employees with respect to requests for accommodation, one may as well reference the requirements of employers in such cases:

  • accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
  • obtain expert opinion or advice where needed
  • take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
  • keep a record of the accommodation request and action taken
  • maintain confidentiality
  • limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
  • grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
  • bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.

Accommodation is a shared responsibility. Prudent employers respect and remember that while the employee has a responsibility to engage in the process, so must the employer.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

1 comment:

  1. Although I do understand the employees situation, he should have responded to some of the messages and requests from the employer. Therefore I agree with the decision.