THE EMPLOYERS' EDGE
Another CCPartners Success Story: Employer Properly Terminated Employee’s Employment for Refusing to Undergo Independent Medical Examination
Employers of course have a duty to accommodate their employees’ disabilities to the point of undue hardship, but did you know that an employee who unreasonably refuses to engage in the accommodation process risks being terminated from employment for just cause?
In Wan v Intek Communications Inc., the Employer took the rather exceptional step of terminating an employee’s employment for repeated failure to participate in the accommodation process. In particular, the Employee refused to attend an independent medical examination (“IME”) that was meant to reliably assess the restrictions and limitations placed on him by virtue of his disability. The case was argued by CCPartners’ own Kelsey Orth, who secured a successful outcome for the Employer.
There was no dispute that the Employee suffered from a disability. The Employer argued that its legal duty to accommodate the Employee could only be discharged with the Employee’s cooperation; specifically, by providing appropriate and up to date medical information. The Employee, on the other hand, argued that the Employer had sufficient medical information from an IME performed some four years earlier. He claimed that the Employer’s repeated efforts to have him submit to the IME constituted “harassment”. The Employee further alleged that his subsequent termination constituted “unjust dismissal” – a violation of Section 242 of the Canada Labour Code – as well as discrimination in employment on the basis of disability contrary to the Canadian Human Rights Act. He accordingly demanded to be reinstated to employment with full back pay and damages for mental distress allegedly caused by the Employer’s improper conduct.
The Adjudicator was charged with resolving two key legal issues:
1) Did the Employer have just cause to terminate the Employee for repeatedly refusing to attend the scheduled IME, and if so;
2) Should the penalty of discharge be reduced to some lesser sanction that is “just” in all the circumstances?
The Employee was 60 years old at the time of the termination of his employment, and had been employed for 12 years. He suffered an initial workplace injury in 2013, which was exacerbated by an at-fault motor vehicle accident while on the job in 2014. Independent functional ability testing was conducted as part of the Employee’s WSIB process in 2015. The adjudicator noted that the Employee submitted to the independent exam in 2015, but refused to do so between 2018 and 2019, after which period of refusals his employment was ultimately terminated. The adjudicator noted that the Employee proffered no reason other than supposed legal advice that he did not have to submit to the requested IME. This contributed to a finding that the Employee’s refusal to provide updated medical information was grounded in the mistaken belief that only he and his doctor could determine appropriate accommodation in the circumstances. However, the Adjudicator also noted that the Employee’s doctor never conducted an analysis of the Employee’s abilities against the requirement of his job, and was therefore entirely deficient.
The Employer wanted updated medical information from an independent assessor to satisfy its obligation to ensure that it could safely assign work to the Employee, and to explore the full range of options that may be available to appropriately accommodate the Employee’s disability. The Adjudicator largely agreed with the Employer, summarizing as follows:
 From the very beginning of this saga, the Complainant has taken an uncompromising, demanding, and strident approach to the accommodation of his disability, unfortunately aided by unnecessarily confrontational correspondence. He repeatedly asserted (personally or through his representative) that his own doctor’s opinion on the need and duration of regular breaks as the appropriate accommodation was governing, where the evidence revealed his doctor’s perspective was based on an out-of-date 2015 FAE, giving the Employer the legitimate right to seek another qualified evaluation. …
 During his testimony the Complainant had no appreciation of doing anything wrong, instead relying on his claimed legal advice that the information provided to the Employer was “sufficient”… He took no responsibility for the complete breakdown of the employment relationship arising out of his actions or inactions (both personally and through his representative), which in the context of what one could anticipate would be the need for ongoing adjustments of any accommodation plans in the future, was a major consideration in wholly dismissing this unjust dismissal complaint …
The Adjudicator found that the Employee could not establish a case for discrimination because of his repeated and unjustified refusal to satisfy his own duty to cooperate in the accommodation process. The Employer, in contrast, was prepared to continue accommodating the Employee, subject to receiving proper medical information. The Adjudicator found this to be the proper approach. He went on to confirm that where an employee does not cooperate in the accommodation process, or turns down reasonable accommodation, “the employer’s duty to accommodate is at an end and discharge is the inevitable result.”
Not surprisingly, the Adjudicator found that the Employer did have just cause to terminate the Employee, and there was no reason to substitute a lesser penalty.
Takeaways for Employers (and Employees…and Doctors for that matter)
This is a welcome outcome for all employers and should be viewed as an example of how to properly engage in the accommodation process.
Accommodation is not just an outcome, it is the entire process of making good faith and reasonable attempts to modify the workplace (or the work) so that an employee can safely and productively perform their duties. Further, the accommodation process is not only the employer’s obligation. Employees are obliged to provide appropriate medical information to allow the parties to meaningfully engage in the process. This means that an employee who is seeking accommodation on the basis of disability needs to have their doctor disclose relevant information regarding the employee’s restrictions and limitations. They fail or refuse to do so at their peril.
In limited circumstances, where an employee fails or refuses to provide information, or the information they provide is objectively unreliable, an employer can insist that the employee submit to an independent medical examination. The refusal to do so will end the accommodation process and ultimately may result in termination of employment for just cause.
This kind of human rights-based exercise can be tricky to navigate. Fortunately, just as we did in this case, the lawyers for employers at CCPartners can help guide you through the accommodation process, the use of IME’s, and identify the end of the employment relationship.
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