Canadian Employment Law Today

September 12, 2018

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 September 12, 2018 Worker gives low eff ort in assessment, but full eff ort in appeal of benefi ts discontinuation Worker loses workers' compensation benefi ts for lack of eff ort in functional assessment, gets another hearing due to tribunal's error evaluating her case BY JEFFREY R. SMITH A NEW BRUNSWICK worker who lost her workers' compensation benefi ts be- cause of a perceived lack of eff ort in func- tional ability testing has won her appeal to get a reconsideration of her case due to a lack of consideration of all the evidence. Elizabeth Paul worked as a cleaner at a hotel in Woodstock, N.B. On Dec. 29, 2011, Paul was moving a laundry cart on the stairs between fl oors at the hotel when she slipped and fell down the stairs. She injured her left shoulder, left arm, buttocks, and tailbone. Following the accident, Paul's doctor diag- nosed a contusion on her tailbone. Over the next two months, Paul had diffi - culty sitting and standing due to her injuries. She saw another doctor and a physical medi- cine specialist who determined her lumbar fl exion was only 25 per cent. Paul continued to experience ongoing back pain, chronic pain, anxiety, and depres- sion. In May 2012 a medical report stated she had a "sleep disorder which was aggravating her chronic pain syndrome" and she needed "a full evaluation with psychology, occupa- Fired w orker's attempt to toss out termination clause foiled Termination clause met statutory notice requirements with broad wording that indicated intention to include what was legally required BY JEFFREY R. SMITH A FIRED Ontario worker's claim that the termination clause in her employment con- tract was not enforceable for failing to meet statutory minimum requirements and be- ing unconscionable has been dismissed by the Ontario Superior Court of Justice. Althea Burton joined Toronto law fi rm Aronovitch McCauley Rollo LLP (AMR) on March 3, 2003, as a legal assistant. After she completed a probationary period, Bur- ton was enrolled in a group benefi t program provided by a third-party insurer that was completely funded by AMR. Burton's employment contract included a termination clause that allowed the fi rm to terminate her employment without cause by providing her with "severance pay in accor- dance with the Employment Standards Act, as amended, and any successor legislation, if Anger and insubordination enough to fi re truck driver pg. 3 Driver didn't like reassignment to truck he thought was dirty and required time to charge up, but employer had the right Angry worker's fi ring overturned, but he doesn't get his job back pg. 4 City worker acted aggressively in front of customer, co-workers REQUIREMENT on page 6 » TRIBUNAL on page 7 » CREDIT: SVETLANA LUKIENKO/SHUTTERSTOCK with Brian Johnston Ask the Expert pg. 2 Dismissing employee who recently made complaint

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