Intek justified in firing worker who stymied efforts at accommodation, refused to attend IME

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Intek Communications had just cause to fire a worker because of his repeated refusals to co-operate in the search for reasonable accommodation for his disability, an arbitrator has ruled.

The adjudicator also cited his lack of remorse and antagonistic communications in refusing to reinstate him.

The worker, QW, was terminated from his position as a warehouse assistant on June 17, 2019. The company cited his refusals to attend an IME to assess his current physical capabilities and need.

QW missed an appointment on June 4, and it became clear in communication with the company he had zero intention to go to an IME.

“We have been accommodating you temporarily for some time based on historical medical information,” read the termination letter.

“Although we tried several times over the last year or more to obtain proper and current medical information from your treating physician – even attempting to work with you and your physician after a previous refused IME appointment – the process was not working, and we did not receive any medical information based on either an objective assessment or evaluation of your current health.”

The company decided an IME was the best way to get the information it needed and arranged for a Mandarin interpreter to ensure clear communication and understanding during the appointment, it said. When that appointment was missed, which “resulted in significant costs to Intek,” the decision was made to fire QW.

Workplace injury and accommodation

Intek is a contractor for Rogers Communications that provides home phone, Internet and television maintenance and installation. QW joined the company in May 2007.

In October 2013, he suffered a workplace injury to his right ankle while performing his duties as a cable technician. His workers’ compensation claim was approved, and he returned to regular duties at the end of the month.

On April 7, 2014, he was involved in a crash in his work vehicle. He was subsequently found, by the health and safety committee, to be at fault in a preventable accident. He was disciplined by Intek in April 2014 and given a disciplinary letter dated April 23, 2014.

On Jan. 9, 2016, he suffered a re-injury to his ankle and filed a workers’ compensation claim. He was accommodated into the warehouse assistant role on March 14, 2016.

On July 7, 2015, QW completed a functional abilities evaluation (FAE). It indicated a number of physical restrictions and suggested he take “micro breaks” as needed throughout the day.

In March 2016, he was offered modified duties in accordance with his documented medical restrictions. On June 6, 2017, QW’s doctor advised he would need to remain on modified duties for six more months.

On Feb. 20, 2018, the doctor provided a letter advising that QW’s condition had not improved despite “intensive treat of pain clinic/psychiatrist and therapist” [sic]. The doctor also said the worker was suffering from depression and generalized anxiety.

Employer asks for more information

On March 1, 2018, Intek asked for further medical information to support continued accommodation. It asked for a prognosis as to how long restrictions were to remain in place, as well as a long-term outlook for recovery.

On March 9, QW’s doctor recommended he take a five-minute break for every 20 minutes of working time. This restriction would need to be in place for five years.

On May 1, 2018, Intek asked QW’s doctor for more insight into possible accommodation strategies that would balance his needs with the company’s operational requirements. On June 22, 2018, the doctor said her correspondence from March 9 was based on the worker’s FAE from 2015.

IME request

On July 5, 2018, Intek asked QW to participate in an IME. It was scheduled for July 24, 2018.

On July 13, QW provided a WSIB Functional Abilities Form (FAF) completed by his doctor. The worker was then told Intek didn’t need an FAF as there was no active WSIB claim, and it didn’t answer questions it had about his current abilities.

It again asked QW to attend an IME it scheduled for Aug. 7, 2018. That was met with a response from QW’s lawyer on Aug. 1. She indicated he was willing to participate in the accommodation process but did not believe an IME was necessary.

On Aug. 2, the company sent a letter to QW’s lawyer, stating it wished to perform an IME because it did not believe the accommodation process was being properly served.

On Aug. 3, the lawyer said QW was willing to co-operate with accommodation but objected to the IME.

More requests for medical information

The company continued to ask for information. On Jan. 17, 2019, its counsel sent a letter to QW’s doctor asking for more information about the schedule for breaks. It wanted to incorporate longer breaks, less frequently. It also asked the doctor to list any current restrictions.

The doctor said QW was willing to try a schedule of one 10-minute break every 90 minutes.

On March 22, the lawyers asked the doctor for more information asking for a clarification: Did she conduct her own assessment or an interview of QW? And whether the recommendations were based on the 2015 WSIB review or current information.

On April 12, 2019, Intek told QW it could no longer maintain the temporary accommodation. He was told not to report to work until he could provide the information it asked for on March 22.

On April 12, QW’s lawyer responded to Intek. It disputed the company’s characterization of the accommodation process and stated that he felt harassed by further requests for medical information.

There was a lot of back and forth between the parties. On May 2, 2019, Intek told QW an IME was necessary. On May 14, QW responded (via his lawyer) that he was setting up an IME with an occupational therapist of his choosing. The company balked at the scheduling, payment for and use of this IME.

On May 17, Intek told QW it had arranged for an IME on June 4, 2019, and he was required to attend this appointment.

On May 31, QW’s lawyer said he had already obtained an IME and wanted to know why the employer continued to seek one. She said he did not want to attend the June 4 IME.

The company responded with a note that the IME scheduled for June 4 was not optional. Intek required him to attend. QW did not show up for the appointment.

He was terminated on June 17.

The arbitrator’s ruling

Arbitrator Gordon F. Luborksy said, from the beginning, QW had taken a “uncompromising, demanding, and strident approach to the accommodation of his disability.”

It also noted that there was “unnecessarily confrontational correspondence.”

During testimony, QW had no appreciation of doing anything wrong, Luborsky said. There was a “overtly hostile air of entitlement and palpable evasiveness in answering straightforward questions.”

The arbitrator did consider whether or not reinstatement was an appropriate remedy, on the condition QW co-operate with Intek in the future. It declined to consider that option, citing a lack of remorse, no sense of understanding and his “antagonistic approach and confrontational or disingenuous responses.”

Luborsky ruled Intek had just cause to terminate his employment.

For more information, see Wan v. Intek Communications Inc., 2022 CanLII 97950 (CA LA).


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