Canadian Employment Law Today

April 3, 2019

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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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 ©2019 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, mechani- cal, 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. GST #897176350 Emplo y ment Law Today Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) E-mail: 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: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 Emplo y ment Law Today Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Were there grounds for dismissal? OR Was the employee's leave legitimate? IF YOU SAID the employee's leave was le- gitimate and he shouldn't have been fi red, you're right. e court found that while SCI didn't accept the medical certifi cate Bailey provided as suffi cient to support his absence, it didn't request any additional information from him or inform him it needed more. In addition, the company was fully aware of the reason for his absence — Bailey had informed management the day he stopped working and had been previously off work because of his stress — and the steps the company took — sending him a request for leave form and preparing an ROE — showed it was aware he was taking medical leave. In addition, though the benefi ts provider re- jected his claim for STD benefi ts, Bailey ap- pealed the decision, a process that was still ongoing when SCI terminated his employ- ment. e court also found that during Bailey's absence, SCI didn't keep in touch with him and didn't tell him it considered him to have abandoned his employment. As a result, Bailey wasn't given a chance to answer the accusation or provide more support for his absence. As for the supervisor's belief that Bailey was working as a real estate agent during his absence, Bailey did not try to hide his pursuit of a real estate licence and part-time work in real estate from SCI and the company didn't tell him it had any problems with him doing that. Any work he may have done was part- time and was likely no diff erent than what he would have done had he still been working regularly with SCI, said the court. e court found SCI wrongfully dismissed Bailey and ordered the company to pay him the equivalent of eight weeks' salary and benefi ts as limited by his employment con- tract to the legislative minimum — $23,293 — plus aggravated damages of $25,000 and punitive damages of $110,000 for SCI's lack of good faith in fi ring Bailey when it knew he was ill ,and not properly informing him. For more information see: • Bailey v. Service Corporation Internation- al (Canada) ULC, 2018 CarswellBC 320 (B.C. S.C.). Brief doctor's notes, moonlighting raise suspicions about medical leave THIS EDITION of You Make the Call fea- tures a British Columbia worker who was fi red for job abandonment after going on medical leave. Donald Bailey, 65, was a salesman for Ser- vice Corporation International (SCI), a com- pany that sells funeral-related products and services and operates cemeteries and funeral homes in the Vancouver area, since 1996. He also studied to be a real estate agent and told management he was going to obtain his real estate licence. No one at SCI told him this wasn't allowed, though his supervisor felt it was interfering with his work. On June 23, 2013, Bailey obtained a doc- tor's note stating he had a medical problem and should be off work for two weeks. On Sept. 11, 2013, Bailey went to the same clinic and received a medical absentee cer- tifi cate that stated he should be off work until March 1, 2014, due to medical reasons — he had been experiencing symptoms of stress, and anxiety. He informed an SCI manager the same day about his medical issues and sent the certifi cate the next day. Bailey's supervisor sent him a request for leave document and fi lled out a record of employment (ROE) request indicating the reason for needing an ROE was a leave of ab- sence. When Bailey saw the ROE, he said it was wrong and the reason should be that he had an illness. He refused to sign the form. A new ROE form was drawn up with the reason for request listed as "illness or injury," but Bailey wasn't asked to sign it. Bailey ap- plied for short-term disability (STD) ben- efi ts, but the benefi ts provider denied the claim as it determined Bailey's condition arose out of the course of employment and he should apply for workers' compensation benefi ts. Bailey did so, claiming his medi- cal condition had been "created by years of working in a stressful environment" during which time he had been abused by his super- visor and another manager. His claim was denied on the grounds that his stress arose out of the ordinary course of his work. Bailey appealed the denial of STD ben- efi ts, but didn't hear from SCI until Nov. 28, when his wife made a claim for benefi ts and the provider informed him he was no lon- ger an employee of SCI. It turned out SCI had dismissed Bailey for abandoning his employment, retroactive to his last day of work on Sept. 11. SCI said that Bailey was absent without leave, as he hadn't provided suffi cient medical information to support his absence. In addition, the company said Bailey had worked as a real estate agent during his absence.

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