Good advice: never quit, wait to be fired. You get more.
Carrie worked as a bus driver in Alberta. She developed what is called “environmental urticaria”. This meant that exposure to fumes such as diesel fumes or perfumes caused hives, flushing, discomfort and facial swelling. In order to treat these symptoms she had to take antihistamines but the antihistamines caused drowsiness. Nobody likes a drowsy bus driver.
When the disability first emerged, Carrie started missing work frequently. Sometimes she would go off on short term disability. Her husband was also a bus driver and sometimes he would work her shifts for her.
Finally, after a short term disability leave 14 years after this condition first emerged, Carrie applied for long term disability through the employer’s insurance company. The insurance company said that if Carrie was made a light rail transit driver instead of a bus driver, her symptoms would probably disappear. Since Carrie was in a union and had enough seniority to move into one of these positions, the insurance company decided she was not totally disabled and declined her application.
When the employer learned that Carrie could be an LRT driver, it contacted her and a very crucial conversation took place over the phone.
At the human rights hearing, the disability manager said that he asked Carrie to contact her supervisor the next day to discuss a potential return to work as an LRT driver. The employer advised Carrie that she was free to appeal the denial of long term disability benefits with the insurer and that a leave of absence pending the outcome of the appeal was possible. The disability manager indicated that he told Carrie he would never put her in an unsafe situation and just wanted her to contact her immediate supervisor to talk about the LRT option.
Carrie gave evidence that he demanded that she attend the office in person, required her to report to work, threatened her with discipline or dismissal and that she understood she was being compelled to drive a bus.
Before contacting her supervisor the next day, she resigned. She filed a human rights complaint. The adjudicator had to choose between two versions of events: That of the disability manager and Carrie’s. Unfortunately for Carrie, the employer could prove through its own internal documents that by the time this conversation took place they were already investigating moving Carrie into an LRT position. The adjudicator believed the disability manager.
Carrie overreacted. There was evidence that she did not like the disability manager and had a natural animosity toward him.
There are two important points to be learned from Carrie’s case.
Although there has been much discussion about whether environmental sensitivities were real or imagined, it is likely that that condition is going to be recognized as a disability by human rights tribunals across the country. In Carrie’s case, the employer never challenged the veracity of Carrie’s condition or denied that a disability existed.
Employers are going to have to tune in to environmental sensitivity issues raised by their employees.
For employees, the important lesson is to think before you quit. Employment lawyers have a saying, “Never quit, wait to get fired. You get more.” If an extremely important conversation takes place that you think ended the employment relationship or gave you a good reason to end it, send a follow-up email to whomever you talked to. It should outline your understanding of what they said to you. It should ask them to respond immediately if they disagree with your understanding. If you can prove they got the email or letter and they don’t respond quickly, that will be very good evidence that your version of events is the right one.
If it comes down to a he said/she said situation, however, the results can be very unpredictable. That’s a very precarious basis to found a claim for damages against your employer.
As published in The Hamilton Spectator, April 21, 2014
Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.