Canadian Employment Law Today

April 12, 2017

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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PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com April 12, 2017 Disappearing worker's claim of disability discrimination thrown out A BRITISH COLUMBIA worker's disability discrimination complaint has been dismissed by the province's human rights tribunal on the basis that the worker didn't provide information supporting accommodation and simply didn't respond to the employer's attempts to fi nd out what was going on. Kyah Aue ah was employed with Pa- cifi c Metals, a metal recycling company in Vancouver. His job was that of a torchman, a position that involved welding and the use of blowtorches. On July 17, 2014, ah was in a motor ve- hicle accident, suff ering multiple soft tissue injuries. e day after the accident, he pro- vided a doctor's note and sent an email to Pacifi c Metals that indicated he would need to be off work until July 25 to recover. During that time, ah received physiotherapy and continued to provide doctor's notes saying he couldn't return to work. ah remained off work for three months. On Oct. 7, he presented a doctor's note that said he would be able to return to his "full du- ties and full-time" after Oct. 15. ah actu- ally returned on Oct. 20. ah worked for six of the next 10 days but said his injuries were exacerbated and he couldn't continue his full duties. Pacifi c Met- als tried to accommodate him by providing him "the lightest duties in the operation" for which he had training or was qualifi ed. ah's supervisor wrote him a memo stat- ing he had been cleared to return to work full-time and perform his full duties, but he seemed to be unable to do so and was com- plaining of pain. e supervisor asked him to see his doctor again and let him know "where you are at," noting that his safety was the company's "primary concern" and it needed to ensure he was cleared for "full heavy duty work and are fully recovered." ah was off for another three months and returned on Jan. 26, 2015, performing his full duties on full-time hours. ah complained that Pacifi c Metals refused to accommodate Making a termination clause legit Contractual language must allow for more than just wages to comply with employment standards minimums BY JUSTIN TETREAULT IN RECENT years, the enforceability of termination clauses has been a hot topic in employment law circles as some courts have appeared to take a closer look at them and displayed a greater willingness to strike down clauses that potentially violated the employment standards legislation. Despite the growing body of case law in which termination clauses were found to be unenforceable for various reasons — such as the failure to provide for continued benefi ts during the employee's notice period — there were also enough cases demonstrating a more lenient approach that it could be fairly said that the state of the law was uncertain. In the recent case of Wood v. Fred Deeley Imports Ltd., the Ontario Court of Appeal provided some much-needed clarity about the proper interpretation of termination clauses, demonstrating the strict approach that courts must take in rejecting clauses which contain even potential violations of CREDIT: RALF KLEEMANN/SHUTTERSTOCK Intent just as important as possession pg. 3 Oil rig worker's possession of marijuana not a violation of drug policy since he forgot it was in his pocket Benefi ts during the notice period pg. 4 Employers should be aware that not only is the statutory minimum notice usually not good enough, but it involves more than just wages with Meghan McCreary EMPLOYER'S on page 6 » WORKER'S on page 7 » ASK AN EXPERT pg. 2 Investigating harassment complaint dismissed by police

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