Canadian Employment Law Today

November 4, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures a B.C. worker who claimed disability-relat- ed bullying and harassment and was fired soon after. Steve Silva was hired in November 2018 to be a project manager for the Langley, B.C. division of Tritech Group, a company that designs, con - structions and commissions water infrastructure projects. His employment included a six-month probationary period. Two months into his tenure with Tritech, Silva began having problems interacting with clients and contractors. As part of his job, Silva had to provide infor - mation on project bids, and it was important to provide accurate information due to potential liability. On Jan. 15, 2019, Tritech noticed that information he had provided about himself and his qualifications was different than what he had provided at the time of his recruitment — at the time, Silva had told the company that he held a valid certified engineering technologist (CET) certification and was registered with the Asso - ciation of Science and Engineering Technology Professionals of Alberta (ASET), but it turned out that both claims were false. In addition, the dates and company names of his previous employ- ment that he had listed when he applied for the job were false. One month later, Silva told the company pres- ident that he had fallen the parking lot but he wasn't hurt. He worked the next four days with- out reporting any problems. However, on Feb. 25, Silva emailed the presi- dent to say that his doctor wanted him on bed rest for two weeks due to a tailbone injury, but he suggested that he work from home as "WCB won't know the difference." The president was surprised to hear he was making a workers' com - pensation (WCB) claim. Silva submitted a doctor's note recommend- ing modified duties and working from home for two weeks, but it was written for a "Steve Gavin." Tritech was aware that Silva had used different names in the past, but he had said that he had taken his wife's name and his medical care card didn't yet reflect the change. Tritech told Silva that working from home wasn't possible in his role, but it would get a standing desk if it was uncomfortable to sit. How - ever, Silva provided a second doctor's note stat- ing that he was "unable to work or attend school activities due to illness/injury" until March 10. Tritech found the notes to lack the informa- tion it needed to assess Silva's situation and help him return to work. Silva had also failed to bring return-to-work forms for the doctor to fill out. A short time later, the president found out from a contractor that Silva had previously worked for the contractor during the time Silva had claimed he had worked for a different com - pany. Silva had not disclosed he had worked for this contractor. In addition, the president learned that Silva had used several different names going back nearly a decade. On March 2, Tritech sent forms for Silva's three-month performance review, but Silva re - fused to complete them before he returned to work, saying it was doctor's orders to not do any work for two weeks and the WCB had told him he didn't have to follow a direction to complete the forms. However, Tritech was told by Silva's WCB case manager that medical leave didn't prevent him from filling out performance review forms. The following week, Silva's doctor submitted an assessment form that indicated Silva could work if he didn't have to sit from two weeks after the date of the injury. This was contrary to Silva's claim that he needed to have bed rest at home for two weeks. Silva's claim for WCB benefits was successful, but Tritech appealed the decision. On March 8, Silva filed a complaint of discrimination in employment on the basis of physical disability, claiming that Tritech had launched "a campaign of bullying" after he was injured — Tritech was up - set he had made a workers' compensation claim, it wanted a second opinion about his injury, asked him to complete his performance review while on leave and appealed the WCB decision. Three days later, Silva was scheduled to return to work but didn't. Tritech terminated his em - ployment. YOU MAKE THE CALL Was there just cause for dismissal? OR Was Silva's injury/disability a factor in the dismissal? IF YOU SAID there was just cause for dis- missal, you're correct. Since Tritech wasn't expecting a WCB claim, the tribunal found that it made sense to ask for more informa- tion, for that as well as for potential accom- modation — particularly since Silva's infor- mation was contradictory and vague, said the tribunal. As for the performance review forms, Silva didn't explain why he couldn't complete them before returning to work. He claimed it caused him stress, but there was no evidence this was related to his disability other than the fact he was on leave at the time — for an injury unrelated to stress. The tribunal also found that Tritech's ap - peal of the WCB decision was an exercise of its rights to defend itself, was not "inherently discriminatory" and could not be "reason- ably construed as bullying or harassment." The tribunal determined that, in addition to there being no bullying or harassment, Silva's disability was not a factor in his dis- missal. With performance issues along with the misrepresentation of his qualifications and employment history on both his resumé and bid information, Tritech had a sufficient number of non-discriminatory reasons to terminate Silva's employment. For more information, see: • Silva v. Tritech Group and others, 2020 BCHRT 149 (B.C. Human Rights Trib.). Injured, fired worker claims disability-related bullying

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