Canadian Employment Law Today

©2018 Thomson Reuters Canada Ltd. 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. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 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 Did Westhaver quit his job by not co-operating with return-to-work efforts under company policy? OR Did the company wrongfully terminate his employment? IF YOU SAID the company wrongfully ter- minated Westhaver's employment, you're right. e Nova Scotia Labour Board found that Westhaver produced a note from his doctor following his surgery that placed him on medical leave and when the com- pany spoke to him he said he had to consult his doctor regarding his ability to perform modifi ed duties. Nothing in his actions or comments would lead a reasonable person to assume he intended to quit his job, said the board. In addition, the company didn't set a time- line for providing the completed abilities form from his doctor. When the company sent the ROE, Westhaver had an appoint- ment scheduled for two weeks later — there was no indication he failure to respond be- fore then was an act of wilful disobedience. And though Westhaver requested a record of employment, it was to access sick benefi ts, not end the employment relationship, said the board. e board also found Westhaver had no discipline on his record and was considered a good employee. e company never told Westhaver his job was in jeopardy or that it considered him to be in violation of the return-to-work policy. As a result, dismissal was too extreme, even if there was miscon- duct on Westhaver's part, said the board. e board determined Westhaver was dismissed without cause and ordered the company to pay him appropriate statutory pay in lieu of notice. For more information see: • Harry Freeman and Son Ltd. and Westhaver, Re, 2017 CarswellNS 348 (N.S. Lab. Bd.). A post-surgery return-to-work dispute THIS EDITION of You Make the Call features a worker who was at odds with his employer on when he should come back to work after surgery. Edward Westhaver was a maintenance worker at a Nova Scotia lumber mill operat- ed by Harry Freeman and Sons. He was hired in January 2011 and his supervisor viewed him as being a good worker. In March 2015, Westhaver injured his elbow at work. He notifi ed his supervisor about the injury and received workers' com- pensation for the missed time off work. e mill's return-to-work policy stipu- lated that the company would accommo- date modifi ed duties as transitional work for workplace injuries. Participation was man- datory depending on the employee's physi- cal capabilities, and the onus was on the em- ployee to fully co-operate. Westhaver's supervisor asked him about his ability to do various modifi ed duties and Westhaver never refused any of the work as- signed to him. e modifi ed duties involved work such as visual preventative mainte- nance, inspecting and changing saw blades, and monitoring the computer that kept track of the wear and tear on the blades. Westhaver also developed carpal tunnel syndrome (CTS) in his right hand. A sur- geon told him in May 2016 surgery could help with the CTS, so it was scheduled for the following month. e surgeon provided a note saying Westhaver needed two weeks off before the surgery. Westhaver called the mill to report his absence and the doctor faxed a note on May 25. e mill's occupational health and safety (OHS) co-ordinator and Westhaver's man- ager contacted Westhaver to say they had work that could accommodate his hand injury — involving mostly sitting or stand- ing — and there was no medical evidence to support his absence for two weeks before the surgery. However, Westhaver maintained his surgeon had put him off work. e company contacted the Workers' Compensation Board (WCB) to discuss the situation and the WCB said it didn't see any reason why Westhaver needed to be off work for two weeks prior to his surgery. Westhav- er agreed to return to work for the week be- fore his surgery. Westhaver was assigned to do fi rewatch but also found himself climbing and lugging things around, as well as preventative main- tenance. On fi rewatch, he sometimes had to jump over machines and use his arm, which he felt was a safety issue. Westhaver had his surgery on June 14. He didn't call in after his surgery to report his absence, though his surgeon put him off work for six weeks. His supervisor tried to call him, but the number he had was outdat- ed and he wasn't able to contact him. On June 29, Westhaver's family doctor faxed a medical note dated June 12 indicat- ing Westhaver would be on sick leave until Sept. 19. e OHS co-ordinator looked up recovery times for CTS on the Internet, which seemed to be one to one-and-one- half months, and wondered why Westhaver would need three months to recover. e company contacted Westhaver to off er him modifi ed duties, but Westhaver said he needed to consult his doctor. He also asked for a record of employment (ROE) for sick benefi ts, but the company said there was no reason to issue one. On July 14, the company sent Westhaver a letter saying it had modifi ed duties available within his abilities. It also said it needed an abilities form completed by his doctor or, al- ternatively, a letter of resignation after which it could issue an ROE. ere was no response so on Aug. 3, the company issued Westhaver an ROE indicating he had quit. Westhaver fi led a labour standards complaint for dismissal without notice.

• Cover