Canadian Employment Law Today

December 16, 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 info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS EDITION of You Make the Call involves a worker who was unable to work due to men- tal health issues and the scheduling problems it caused her employer. The worker was hired in April 2018 to work at a gas station restaurant in Wyoming, Ont. for three to four shifts per week. Shortly after she started work, she informed the manager that she had a history of mental illness and substance abuse. The manager was supportive and helped her when she had episodes of anxi - ety at work. Two months after the worker was hired, the manager left and was replaced. Around the same time, a friend of the worker died, which contributed to a worsening of her mental health issues. On June 13, the worker contact - ed the new manager to say she wasn't able to work that day. She also called in sick the fol- lowing day. The new manager was angry that she would have to get someone else to cover the worker's shift and the worker said she would get a doc- tor's note for her absences. A few days later, the worker went to the emergency department at the local hospital and obtained a doctor's note excusing her from work for three days from June 13 to 15. The note didn't say that the worker was unable to work due to mental health reasons, but the worker told the new manager about her dis - ability and why she had been unable to work. Later that day, the worker visited the with- drawal management services at the hospital, where she stayed overnight for treatment and counselling. The next day, June 18, the worker texted the new manager and said she was able to return to work. However, the new manager told her that the restaurant had hired new staff to cover her absences and there were currently no hours available. Since the doctor's note hadn't indi - cated how long the worker would be off work or if she would even be able to return, the new manager and the owner felt hiring new staff was necessary so it wouldn't have to deal with the uncertainty. The worker said she was going to contact the owner of the restaurant and the Ontario Human Rights Tribunal and the new manager texted back "Good luck LOL." The manager then told the owner that the worker was "not a good fit for the business" and should be removed from the payroll. The restaurant had no further contact with the worker. Although the worker believed she was capa - ble of returning to work at the restaurant, she didn't feel ready to start a new job. As a result, she didn't look for work for two months. In Sep- tember, she started attending college in another city and worked several jobs over the winter. She didn't find a full-time job until May 2019. The restaurant closed permanently in Octo- ber 2018. YOU MAKE THE CALL Did the restaurant discriminate against the worker? OR Did it have legitimate reasons to dismiss and replace the worker? IF YOU SAID the restaurant discriminated against the worker, you're right. The Ontario Human Rights Tribunal accepted that the worker's mental health and substance abuse issues constituted a disability and she commu - nicated this to both the original manager and the new manager. When the worker called in sick, it was related to that disability, said the tribunal. The tribunal noted that the uncertainty around the worker's return to work may have been difficult for the restaurant's staffing plans, but it had a duty to accommodate the worker's disability to the point of undue hardship be - fore considering termination of employment. After only a few days, management decided the worker wasn't a good fit but made no effort to figure out any accommodation options, the tribunal said. "The only relevant interaction was between the [worker] and her manager… who, acting in the course of her employment as manager, was the person who decided to terminate the [worker's] employment," said the tribunal. Although the worker claimed lost wages until she found full-time employment in May 2019, the tribunal found that it was unlikely she would have come back to work weekends once she moved away to attend college in September 2018. In addition, the restaurant closed in October 2018 so the worker's em - ployment would have ended then, the tribu- nal said. The restaurant owner and his company were ordered to pay the worker the equivalent of 11 weeks' wages — covering the period from when she was terminated to when she moved away for college, totalling $4,312 — plus $15,000 in compensation for injury to dignity, feelings and self-respect. For more information, see: • Lambourn v. 2471506 Ontario Inc., 2020 HRTO 526 (Ont. Human Rights Trib.). Worker's sick days cause scheduling headache for employer When the worker called in sick, it was related to her disability. The restaurant hired new staff to cover the worker's absences.

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