The British Columbia Labour Relations Board recently ordered an employee to undergo an independent medical examination by a psychiatrist chosen by the employer. This was a preliminary ruling in an unfair labour practice complaint arising from dismissal of the employee.
The employee had taken several month-long medical leaves of absence to deal with the grief associated with the death of her spouse. The employee then requested a two-month long leave for the same reason. At the same time the employee requested this leave, the employer obtained information about the employee that caused it to question the legitimacy of the employee’s request for leave.
The employer sought further information from the employee’s general physician, but the employee did not provide the information. After several requests for more information, which was not provided, the employer denied the request for a leave of absence and terminated the employee.
In response to the termination, the union filed an unfair labour practice complaint. In support of its complaint, the employee’s general physician provided the union with a medical report that supported the employee’s inability to come to work due to grief, anxiety and depression. The employer then requested that it be allowed to commission its own report from a psychiatrist in order to rebut the union’s medical report and defend against the union’s unfair labour practice complaint.
The union refused to consent to the employer’s request and took the position that the examination was not necessary to ensure a fair hearing as the employee’s health was not the primary issue in the case. The union argued that the onus was on the employer to prove that it had just cause to dismiss the employee and that the employer should not be permitted to go on a “fishing expedition” to bolster its case by way of a psychiatric evaluation of the employee.
The Board ruled that the employer was entitled to have the employee submit to an examination by its own expert for the purpose of preparing a report. The Board determined that the union had placed the employee’s medical condition at issue by relying on its medical report to demonstrate that the employee was entitled to a medical leave of absence. The Board concluded that an independent medical examination was necessary to effect a fair hearing.
(click here for full text of the decision)