Termination of employment after 36 months of absence: an expertise is not always necessary

An administrative officer absent on disability for more than 36 months challenges her dismissal. The union alleged that the employer failed to meet its duty to accommodate because the employee was awaiting surgery for the implantation of a spinal neurostimulator. The evidence showed that the employer received a medical certificate stating "total disability for work re-evaluate in one year". The employer then made an additional check with the employee’s doctor, who maintained its opinion, which did not anticipate improvement for another year. The arbitrator concluded that the employer had met its duty to accommodate to the point of undue hardship. According to the arbitrator, the expertise was not necessary: the employer relied on information verified with the employee’s doctor. The employee was not capable of providing her normal and regular work in a foreseeable future. The termination of her employment was justified.

Syndicat du personnel administratif du CIUSSS Centre-Sud-de-l'Île-de-Montréal and CIUSSS du Centre- Sud-de-l'Île-de-Montréal
2021EXPT-1902, 2021 QCTA 535, M^e Yves Saint-André