Canadian Employment Law Today

March 29, 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 March 29, 2017 CREDIT: VINCENT NOEL Failure to investigate work refusal unreasonable but understandable pg. 3 Employer should have investigated work refusal but was preoccupied with labour unrest Employer applications for TFWs deserve fair assessment: Court pg. 4 Employer unaware of information that offi cer used to deny foreign worker application and wasn't given chance to address it ASK AN EXPERT pg. 2 Employee notice of resignation with Brian Johnston EMPLOYEE on page 6 » WORKING on page 7 » Family status discrimination complaint dismissed Worker claimed she couldn't work evenings, weekends because of elderly mother, but didn't explain why things were diff erent on day shifts BY JEFFREY R. SMITH CARING FOR AN elderly parent can potentially be considered family status obligations that require accommodation. But an employer can only accommodate such duties if it has enough information to determine accommodation is necessary. Tonka Misetich was hired by Value Village in April 2006 to be a part-time sales clerk at the company's Niagara Falls, Ont., store. She worked in the front of the store, keeping the retail fl oor, dressing room, washrooms, and check stands tidy as well as performing checkout services for customers. As a part- time employee, Misetich worked days as well as evenings and sometimes on-call. In June 2010, Misetich was moved to a production position in the back of the store, where she sorted, evaluated, and priced items. is was a more physically demand- Taking another job while on medical leave is just cause for dismissal: Adjudicator USUALLY, IT'S NOT a good idea for an employer to fi re an employee who is on medical leave — especially if the leave is due to conditions exacerbated by workplace stress and is supported by medical documentation. However, it may be a diff erent story if the employer fi nds out the employee has taken another job while still off work. David Vine was a dispatcher for Eclipse Delivery & Logistics Solutions, a truck- ing company specializing in local cartage based in Ottawa with another facility in Pe- terborough, Ont. He initially joined Eclipse as a truck driver in 2008 and worked in that position for several years on a contract ba- sis. In 2012 he became a salaried employee and moved to other positions within the company, including that of dispatcher. Vine didn't get along particularly well with the dispatcher who worked the alter- nate shift from his. By April 2015, the ten- sion between the dispatchers was causing concern for Eclipse, as were other issues Vine was having at work. Vine was called to a meeting at the end of April to discuss the issues, and a short time later — in May 2015 — Vine went off work, complaining of panic attacks and symptoms from colitis, which is an infl ammation of the lining of the colon. Vine provided a note from his physician advising that he needed to be off work for medical reasons and applied for long-term disability benefi ts. However, the benefi ts provider eventually denied his claim for benefi ts a few months later and Vine didn't appeal the decision. A short time after going off work, Vine asked Eclipse if there was any work he could do from home. However, the com- pany replied that there was none available and he could only work if he could come into the offi ce. In the fall of 2015, Vine started working part-time as a truck driver with a compet-

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