Canadian Employment Law Today

April 26, 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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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was there just cause for dismissal? OR Was there no cause for dismissal? IF YOU SAID there was no cause for dis- missal, you're right. e arbitrator heard evidence from the worker's doctor and phys- iotherapist confi rmed that the worker was not fi t for full duties up to July 2013. While he had improved, he still had problems and shouldn't lift too much. e worker also ex- plained that he tried to lift only lighter items during his move, though a few things may have weighed more the fi ve kilograms. e arbitrator found it was understand- able why the mill manager found the timing of the worker's disclosure that he was feeling better, right before his vacation, suspicious. However, the surveillance didn't reveal de- fi nitive evidence that the worker was doing tasks beyond his restrictions — particularly since a couple of hours of intermittent work off -duty was diff erent that several hours of constant and repetitive work. e arbitrator also found the timing of the new FAF just be- fore the surveillance was coincidental. However, while the worker wasn't dishon- est about his restrictions and inordinately prolonging his accommodation, he wasn't straight with the employer about his vacation activities and he risked reinjuring himself when he was still offi cially on modifi ed duties. Since the worker had no prior discipline, dismissal wasn't appropriate for the lesser misconduct of trying to hide his vacation activity — less serious than misrepresent- ing his restrictions. Gerdau was ordered to reinstate the worker once he obtained an up- dated FAF. Since the worker demonstrated some dishonesty in his dealings with the employer, his compensation for lost earn- ings was not to include the fi rst six months out of the 32 months since his dismissal. See Gerdau Ameristeel – Whitby and USW, Lo- cal 6571 (Spulnick), Re, 2016 CarswellOnt 5021 (Ont. Arb.). Worker starts feeling better a little more quickly than he lets on THIS EDITION of You Make the Call features a worker who was accused of misrepresenting his medical restrictions following an injury. Gerdau Ameristeel operates a mini steel mill in Whitby, Ont., where the worker was hired as a millman in 2003. In February 2013, the worker was moved into a mill fi nisher po- sition, which involved physically demanding work. He had no discipline on his record. A few months later, on May 23, 2013, the worker injured his right arm at work while lifting samples of steel onto a cart and mov- ing them to a press where they would be cut into one-foot lengths. Each sample weighted between 15 and 20 pounds. e worker saw his doctor, who diagnosed tennis elbow. Another doctor confi rmed the diagnosis and fi lled out a functional abilities form (FAF) that recommended the worker not lift anything more than fi ve kilograms, limit pushing with his right arm, no lifting above shoulder height, and no repetitive twisting or bending of his right elbow. Gerdau developed a modifi ed work plan that took into account his restrictions but enabled him to still do about 80 per cent of his job. Whenever the worker had a task that was beyond his restrictions, it would be as- signed to someone else. e worker continued to work under the modifi ed work plan — supported by a June 24 FAF maintaining the same restrictions for another six weeks. On the last day before a vacation — July 9 — the worker told his su- pervisor that he was feeling better and was able to take on more demanding tasks. Around the same time, Gerdau's mill manager began to suspect the worker was feeling better than he let on, as other em- ployees were complaining that they were being assigned heavy work that the worker couldn't do under his modifi ed work plan, but the worker was seen performing tasks beyond his restrictions outside of work. e mill manager decided to hire a private investigating fi rm to conduct surveillance on the worker over the worker's vacation. e fi rm observed the worker pulling a lawn- mower cord several times, carrying a num- ber of boxes and golf bags while moving into a new home, unloading boxes from his car, and returning items to a Walmart. In many cases, he was using his right arm to carry items and push dollies. e mill manager reviewed video foot- age of the surveillance and the investiga- tor's report and concluded that several of the items the worker was seen carrying were heavier than fi ve kilograms. He confronted the worker, but the worker denied doing any work outside his restrictions during his vacation. He also suggested Gerdau was as- signing work beyond his restrictions. e mill manager felt that this informa- tion, along with the worker's insistence on scheduling physiotherapy appointments in the middle of the workday, showed the worker was "gaming the system" to avoid the physical demands of his job. He suspended the worker pending further investigation. ey day after the suspension, the worker's doctor sent an FAF that indicated the worker was retroactively fi t for full duties starting on July 5. is didn't make sense to Gerdau since the June 24 FAF had indicated restrictions for six weeks. It was determined the worker was guilty of fraud by misrepresenting his medical restrictions and his employment was terminated on July 24.

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