May 15, 2012

Jan Wong’s clash with her employer is an example of how workplace depression claims can quickly spin out of control. Photo: George Whiteside

When former Globe and Mail reporter Jan Wong became ill with depression, she says at first she was in denial about her state of mental health. But when her doctor told her she was in fact depressed and she filed for sick leave, it sparked a standoff with her employer that ended in a costly legal battle.

“From the start it was mishandled; it never had to happen like this,” says Wong who last week launched her book, Out of the Blue, A Memoir of Workplace Depression, Recovery, Redemption and Yes, Happiness. “The first fundamental point I think is employers are not educated about mental illness and they are very last century about how they approach the problem. I think there’s a lot of ignorance also with employees.”

The book covers the evolution of Wong’s depression, which started after she wrote a story in 2006 about the shootings at Dawson College in Montreal in which she suggested Quebec’s linguistic politics created a context for the violence. She became the target of hate mail and even a death threat delivered to her workplace. The Globe also published an editorial expressing regret for the controversial portion of Wong’s article.

Wong felt her employer failed to support her. In fact, when the death threat arrived at The Globe’s offices, she says a security guard was prevented from calling police — something she says is standard protocol. As a result the stress caused her to fall into clinical depression. She then became involved in a struggle with her newspaper and its insurer over the handling of her sick leave benefits. She was eventually fired.

“I think when it comes to cases like this many people will just go away. Companies may lose an employee who is productive. In cold financial terms I was an asset and they turned me into a liability,” Wong tells InHouse. “I became a very expensive liability.”

Wong’s case never made it to arbitration; rather it was resolved through marathon mediation sessions handled on her behalf by her union’s lawyer. She cannot reveal details of the financial settlement from The Globe, but she insisted they acknowledge in writing that she was in fact depressed and that she not be bound by a confidentiality agreement.

“The sticking point was the gag order, I just couldn’t agree to confidentiality,” says Wong. “I wanted to go to arbitration because it is made public. It was very hard because I was deeply depressed when all of this was going on. In the middle of a mediation, my union lawyer was yelling at me — he stood up, screamed at me, and said, ‘you’re insane.’ I said, ‘I guess I am insane because I can’t accept this offer.’ The mediator interjected and told me ‘No, you’re not insane.’”

As soon as she settled with The Globe, she sued Manulife Financial, the company’s insurer. Wong says she stopped receiving sick pay just before Christmas 2006. One of her major battles was over how the benefits were managed. At one point she was followed by a security company that had been hired to collect video evidence to help determine if she appeared to be depressed.

“I’d been off work since early October and ordered back to work after six weeks. I started getting letters saying I had to be at work or else. I was supposed to get six months under the contract but was told by Manulife the maximum was six weeks,” she says.

Employment law experts say the issue of accommodating depressive disorders is a complicated one, but addressing the problem properly has to involve both parties providing information in a timely manner. Too often employees hide their problem and then employers feel blindsided.

“I think understanding depression is part of it, but it’s also a two-way street. Both parties have a duty in the process and that includes an employee’s duty to communicate and raise the issue of accommodation. That doesn’t mean the employer can be willfully blind,” says Shana French of Sherrard Kuzz LLP.

Often, employers will receive notification from a family physician that an employee is sick and is required to go on disability. If that comes out of the blue, the employer may go on the defensive.

“Depression in terms of a diagnosis can be relatively and easily communicated to an employer, if that is required. I don’t think that’s the issue — the issues arise when there is a lack of disclosure and I think that’s where more problems come up now,” says Hendrik Nieuwland of Shields O’Donnell MacKillop LLP. “Usually where disputes occur is with competing diagnosis — a family physician may say it’s depression and a mental-health expert may say otherwise.”

The employee also has the ability to provide information to the employer before reaching the point where a leave is required.

“Often they just provide a doctor’s note saying the person can’t work for six months. That doesn’t help anyone understand the role the employer can play. They can provide resources like [employee assistance plans] or specialists,” says French.

She says Wong’s clash with her employer is an example of how workplace depression claims can quickly spin out of control.

“We see that a lot where the claims of stress and depression have come on the heels of performance management or conflict with supervisors,” says French. “It puts the employer in a position where they say, ‘hold on, is this an excuse or a reason?’ No one is trying to be Machiavellian but at the same time everyone does have a responsibility to mange the workplace and if everyone requested accommodation every time they were disciplined it would be a rather unwieldy world.”

French says there’s also “a lot of fatigue” with employers around the over-use of terms like depression and stress. She cites Crowley v. Liquor Control Board of Ontario, which states stress in and of itself is not considered a disability.

“People muddle up all those terms and they lose a little bit of their impact,” says French.

But, employers are cautioned not to dismiss employees without first investigating fully, given ADGA Group Consulting v. Lane in which the Human Rights Tribunal of Ontario awarded $80,000 to an individual who had bipolar disorder. The complaint arose out of the dismissal of an employee with bipolar disorder, eight days after he started working with ADGA Group Consulting Inc. The tribunal held that ADGA had failed to turn its mind to the prospect of accommodating the employee, resulting in a finding of discrimination.

“So we say to employers, make sure you have a process in place to show you’re exploring what’s going on,” says French.

Nieuwland says some large organizations manage workplace depression and disability claims well by having a separate occupational health department that liaises with the employee and a third-party insurer.

“That means HR and line supervisors don’t get access to the information about the mental illness so there’s a Chinese wall there. It removes decision-making about how to deal with the mental illness from line supervisors and HR and helps protect privacy.”

Wong says she feels HR was not on her side in her battle with her employer because the tension over the story she wrote continued even after she submitted a sick note requesting leave for depression.

“Once I’m sick and send in a sick note everything else should stop. I think it’s where a lot of companies fall down — they keep going with whatever the problem is instead of just stopping. HR should have called a halt to all that internal back and forth about the story. HR must play a more neutral function and cannot be the stick that management uses to beat the employee.”

The Globe and Mail did not respond by time of posting, but watch for updates to this story.

May 09, 2012

After my recent blog about how I saved money on my Bell telephone and internet bills, my friend Chris Boodram sent me a note explaining how recent negotiations with his cell phone provider Fido will result in annual savings of $416.Boodram does not have a landline, so he needs maximum services for the best price. He purchased an iPhone 3G two and a half years ago from Fido and signed a three year contract. Since then he bought an unlocked iPhone 4 so he could eventually choose his own provider.

With six months to go on the Fido contract, the early cancellation penalty of $120 ($20 a month) was low enough that he began seriously comparing other plans offered by discount brands Koodo and Virgin Mobile. Here is what he found out.

Related: Bell Mobility faces $100M suit over pre-paid wireless contracts
Fido contract before

• $35/month: 250 anytime minutes, 100 minutes Canadian long distance.
• $30/month 1G data with tethering access.
• $15: smartphone value pack offering enhanced voicemail, 2,500 text messages, 1,000 picture or video text messages within Canada call and name display.
• $5 for extended network option for $5 to avoid being be charged for roaming on to Rogers’ larger network from the core Fido-branded network
• $0.75 911 emergency access fee.
• $6.95 system access fee of $6.95.

Total  original monthly Fido bill: $104.75 including HST.

Koodo quote:
A comparable package with Koodoo for 150 anytime Canada-wide minutes, unlimited evenings and weekends from 7 PM to 8 AM and 1 GB data.
TOTAL monthly Koodoo bill: $56.50 including HST.

Virgin Mobile quote: Virgin Mobile suggested a $25 talk and text plan with 100 Canada-wide minutes, unlimited Canada-wide weekends 7 PM to 7 AM, unlimited Canada, U.S. and international texting and a “pay as you go” data option. Based on his typical usage:
Total: monthly Virgin mobile bill: $56.50 including HST

New Fido deal:

•  $25 for 150 anytime minutes, unlimited evenings and weekends beginning at 5 pm and unlimited texting (though not picture or video) in North America.
• $30 6GB data value pack including tethering.
• $5 value pack for call display and voicemail (not name display).
• $10 unlimited long distance in Canada package.
• $5 credit every month till my contract runs out in November to sweeten the deal.

Total new monthly Fido bill: $70.06 including HST.

Although the new Fido deal includes fewer daytime minutes, Boodram has a desktop telephone at work and with unlimited evenings starting at 5 PM, he is unlikely to ever need the additional 100 anytime minutes a month in his original Fido contract. He also likes the bump up from 1G to 6G of data as formerly he had to carefully monitor his data usage at the end of each billing cycle.

The new Fido arrangement is more expensive than the Koodoo and Virgin Mobile quotes, but Boodram is satisfied with savings of $34.69/month and is staying with Fido, at least for the time being. However, once his three-year contract expires in November and the $5 monthly credit lapses, he plans to call Fido again to determine what else they will do to keep him as a customer.

Related: How to get rid of monthly phone bills

The key to Boodram’s  negotiating power? He owns his iPhone outright. Nevertheless, it is also apparent that cell service providers are hungry for new business and eager to retain customers. Billing structures are also evolving. For example, inexpensive long distance add-ons are becoming the norm.

Have you negotiated with a service provider for a better deal lately? How much did you save just by asking? Share your story with other moneyville readers.

Related: I cut my Bell bill by $650 just by asking

 

May 10, 2012

An Alberta labour arbitrator has dismissed a grievance brought by the Canadian Union of Postal workers on behalf of a postal clerk who was fired for inappropriate Facebook postings directed at the company and her supervisors.

The woman, with 31 years of service, worked at a postal depot in Edmonton where there was considerable labour unrest. The friction related to management’s efforts to minimize socializing on the job and increase productivity. One result was verbal clashes between older workers and a 24-year old supervisor.  The woman participated in these events and was given a three day disciplinary suspension without pay from October 20 – 22, 2009 – before her Facebook postings were discovered in mid-November. Subsequently she was fired.

The 30 postings contained derogatory, mocking statements about her supervisors and Canada Post. In several comments the woman suggested she had a voodoo doll of one supervisor and if she hadn’t been drinking, “she would take her out on the driveway and run her over.” These threatening posts were sent to more than 50 of the clerk’s Facebook friends including several co-workers.

Related: Dissing your boss can get you fired

The two supervisors disparaged were distraught when they heard about and read the postings and took time off work for emotional distress.

Canada Post argued that the postings were grossly insubordinate, could damage the organization and greatly harmed the supervisors. Canada Post also pointed out that the woman was unapologetic, and justified her actions by blaming her supervisors for creating an intolerable work environment. Under the circumstances and despite her long service, the employer maintained that termination was warranted.

The union grieved her firing, but accepted the postings were regrettable and ought not to have been made. They argued however, that a toxic work environment explained why the woman had chosen to vent her frustration in this manner and noted she believed her Facebook postings were private. Considering the woman’s long service and how close she was to retirement, the union suggested that discharge was too harsh.

In a decision released in March, the arbitrator acknowledged the woman’s age and length of service might in some circumstances be grounds for reinstatement. However, he found that her attitude made her a poor candidate for reestablishing the employment relationship and that she simply refused to accept accountability for her actions. As a result, he concluded that Canada Post had just cause to terminate her.

The moral of this story?

If you have beefs about your employer or co-workers, don’t post them on Facebook or any other social media site. You do not know who your “friends” really are. And even if think you are restricting access to a select few people, you are leaving a digital trail that can come back and bite you.

Related: Fired? Be careful where you sue

May 08, 2012

You recently got a new job and things have been going really well. Yesterday your boss asked you to use a piece of heavy equipment for which you have no training. You are worried about your  safety and the safety of others on the job site, but you are afraid of losing your job.  What can you do?

An employee can’t be disciplined for refusing work based on reasonable safety concerns. Doing so is considered a reprisal and is banned by recently strengthened Ontario Occupational Health & Safety laws. But as with all legislation, the devil is in the details.

Related: How to avoid summer on the job dangers

Here is an edited version of ten  frequently asked questions and answers about when you can refuse unsafe work written by lawyer Glenn Demby for HRInsider.ca.

Q: Who can initiate a refusal to work?
A:  Any worker—full- or part-time, temporary or permanent, new or experienced, with a reasonable fear for safety can initiate a work refusal. However, refusal rights don’t apply where danger is a normal part of the job. So for example, firemen can’t refuse to respond to a fire out of fear that they’ll be burned. Workers also can’t refuse work if the refusal puts others in danger.

Q:  When can I refuse unsafe work?
A:  The general rule is that you must have “reasonable” grounds or cause to believe that the work or equipment poses an undue or unusual hazard or danger to yourself or others.

Q:  When will my fears be considered valid?
A:  Your fears must be sincere and reasonable. It can’t be a pretext to get out of an unpleasant task or to avoid working with a disliked co-worker and it has to be something that an average worker with the same training and experience would consider an unacceptable hazard. A refusal may be considered reasonable even if your fear is based on a condition or circumstance unique to you. For example, a Quebec court found an abnormally tall trucker had the right to refuse to drive an armoured truck that for a normal-sized person would be fine but which didn’t allow a person of his height to reach the controls

Q: Is fear of violence grounds for a work refusal?
A:   Absolutely, as long as your fears are reasonable. For example, a mail carrier was justified in refusing to deliver mail to the home of a violent resident who had thrown things at him before. But it wasn’t reasonable for Air Canada flight attendants to refuse to fly to Israel because they feared terrorism. But the case would have gone the other way if they had been threatened personally

Q:  Are uncomfortable conditions grounds for refusal?
A:  Refusals apply to unsafe, not unpleasant or uncomfortable work. In the real world, though, many cases turn on whether the complained of condition was a real health/safety issue or just something uncomfortable. For example, a federal arbitrator ruled that a railroad cook could refuse to work in a poorly ventilated kitchen that was not air-conditioned in the summer because his health was at risk

Q:  What should my employer do if I refuse unsafe work?
A:  Your employer must investigate your refusal in all cases.

Q:  What role does the government play in refusals?
A:  If after your refusal is investigated you are not satisfied with your employer’s response, your employer must notify the Ontario Ministry of Labour and an inspector will likely be sent to investigate the refusal. If you believe you have been penalized by your employer because you exercised the right to refuse dangerous work, you can file a complaint with the Ontario Labour Relations Board .

Q:  Can I be reassigned during a work refusal?
A:   Yes, you generally can be reassigned to another job until the refusal is resolved as long as you are reasonably capable of doing the job and don’t lose pay or other benefits if that reassignment is to a job that normally pays less.

Q:  Will I be paid during a work refusal?
A:  Most  jurisdictions including Ontario require employers to pay worker while the refusal is investigated. However, in some cases, you may have to repay those wages if the refusal is found frivolous.

Q:  Can somebody else be asked to do the work refused?
A:   That’s a risky thing for an employer to do because if the refusal is valid, the replacement worker will be exposed to the same hazard.

For further information, see the Ministry of Labour’s website.

Related: 10 things people ask employment lawyers

Canada has announced a regulatory change which will speed patient access to new over-the-counter (OTC) medicines and save taxpayers money.

The government is getting rid of Schedule F of Health Canada’s Food and Drug Regulations, to which prescription drugs are currently required to be formally added through a regulatory amendment. Another amendment is required to remove a drug from Schedule F, a process which can take 14-20 months to complete, long after Health Canada has determined that it is safe to move a prescription drug to OTC status.

Eliminating Schedule F will cut red tape without compromising safety, says Health Canada, pointing out that drug safety will continue to be confirmed through a rigorous process of scientific review before a drug can be approved for sale and before a drug can be sold OTC.

Health Minister Leona Aglukkag says the change is being made through Canada’s Economic Plan 2012 as a result of issues raised during the Red Tape Reduction Commission. “Companies and consumers will no longer be required to wait for months before a prescription drug can become OTC. With this move, customers will soon benefit from quicker access to safe non-prescription drugs,” she said.

Moreover, taxpayers will no longer have to cover the costs of outdated regulatory processes, the Minister noted. “Health Canada will replace the current inefficient process with a faster and transparent posting of each new prescription drug on our website,” she said.

Major companies in the sector have supported the move. “Providing consumers with more OTC healthcare alternatives is a great way to promote the importance of self-care within our system and contribute to the viability of our health care system,” said Bruno Mader, general manager at Merck Consumer Care.

“We applaud all measures that will make our health care system more efficient without compromising the safety of consumers,” he added.

McNeil Consumer Healthcare also said it welcomed the government’s recognition of the importance of self-care to Canadians, and the fact that rigorous scientific review will continue to be required prior to the approval of all prescription to non-prescription medicine switches.

“We support this rigorous process and are pleased that it will continue as an important step in ensuring the availability and safety of self-care products,” said Gerry Wright, the company’s senior director of regulatory and medical affairs.

- A new report forecasts that the global OTC market will grow at an average annual rate of 4.6% during 2011-2015, rising from a value of $104 billion in 2010 to $124.8 billion by 2015. While the US and western Europe jointly account for nearly 50% of the market at present, and Japan for 11%, emerging regions are set to drive future growth as OTCs gain popularity worldwide, says the study, from GBI Research.