Sick leave for mental health isn’t black and white across the labour board
A recent federal labour board decision states that a University of Ottawa graduate and former public servant was wrongfully terminated for taking a position as a teaching assistant at the university whilst on sick leave from her job for anxiety disorder.
In the fall of 2010, the employee had worked out a flexible schedule with her employer, Indigenous and Northern Affairs Canada (INAC), while she worked towards her PhD. She then filed for educational leave, which was denied. In July of 2011, the employee attempted to file a harassment claim against her direct supervisor, which was rejected as it was deemed not within the threshold for harassment. Later that year, a psychologist advised her not to return to work, saying that it was aggravating her condition.
In January of 2012, her employer learned that she was working as a teaching assistant at the University of Ottawa, and sent her five letters asking for an explanation from January to November, to which she didn’t respond to under the advisement of her doctors. In November 2012, INAC terminated her contract on grounds of “abandonment of position.”
In December 2012, the employee saw a psychiatrist who diagnosed her with depression and anxiety, and concluded that the stressors at work had been contributing to her anxiety disorder. In February of 2013, the employee’s medical doctor was told she could return to work, but since her contract had been terminated in November of 2012, there was no position for her to return to.
The court document states that “the respondent’s decision to deem (the employee) to have abandoned her position was not reasonable,” but that, “the grievor failed to fulfill her obligation to fully explain her absence to the employer.” Both parties were given 60 days to resolve the issue, a timeframe which has now passed.
First and foremost, the employee’s absence and lack of communication should have been properly explained to INAC. Section 7 of the charter does state that “it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual … on a prohibited ground of discrimination.” The employee shouldn’t have had to disclose any personal medical information on her condition, but could have simply been forthcoming with the fact that her doctors advised against communication, and that once her doctors advised her to reopen communication, she would do so.
That being said, having another job while on sick leave is not her employer’s business, especially in circumstances involving mental health. Working at the university helped the employee in question pursue her education, while managing an anxiety disorder. What someone does on sick leave should not impact their ability to return to their job. There are many ways to manage mental health disorders, and taking sick leave from one job to work as a teaching assistant is not the equivalent of leaving a company while on sick leave to work for its competitor.
INAC needs to come to a reasonable agreement with the employee, given the fact that her claims of harassment were not taken seriously, and that she was wrongfully fired while on sick leave that was initially approved by her employer. The only acceptable resolution would be for her to return to her position.
Instead of helping the employee re-integrate into the work environment, INAC phased her out completely, leaving her in the lurch when she was able to return to work.
The government of Canada should be held to higher standards, and needs to take the well-being of their employees into consideration.
