Canadian Employment Law Today

May 1, 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 HAB Press, a subsidiary of Key Media 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 HAB PRESS, A SUBSIDIARY OF KEY MEDIA One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 President, North America and UK: Tim Duce Editor: Jeffrey R. Smith Email: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Emplo y ment Law Today Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Were there grounds for termination of employment? OR Was the worker wrongfully dismissed? Lumber worker cut loose after fi nding other work while on sick leave THIS INSTALMENT of You Make the Call features a worker who used too much sick leave for the employer's taste. Big Lake Logging is a logging contractor based in Port Alberni, B.C. In 2017, Big Lake was contracted by Western Forest Products to work a tree farm licence and was subject to a single collective agreement that Western Forest Products implemented for fi ve diff er- ent contractors it was using on the project. Big Lake shared equipment and admin- istrative services with another company, IFC, whose owner controlled 50 per cent of Big Lake. e two companies also used the same third-party administrator to handle illness and injury administration. In October 2017, Big Lake recalled sever- al employees to help harvest the tree farm. IFC called a meeting with the employees to tell them it wanted to carry on with the harvesting contract past a trial period, but in order to do so all employees of the fi ve contractors had to be under a single collec- tive agreement, but with the seniority list broken into fi ve pieces — one for each con- tractor, with no bumping between them. Many of the employees felt this was a threat that if they didn't agree to split the seniority list, IFC and Big Lake wouldn't continue with the harvesting contract. One worker — a grapple yard operator — who had held union positions in the past was asked to help the union by joining the "camp committee." Af- ter doing so, the worker claimed his foreman called him at home to angrily ask whose side he was on. Additional messages followed. e worker chaired a heated union meet- ing in which the fi ve-list proposal was re- jected. Afterwards, a manager decided to phone all the employees individually for a secret vote, which led to the worker receiv- ing calls from upset employees. On Dec. 3, 2017, the worker informed the foreman that he would be off the next day due to stress and he was going to see his doctor. He also said he was going to fi le a harassment and bullying complaint, as he had been suff ering from stress, anxiety, and panic attacks due to the tension between the union and the company. When he later indicated he would be back at work after missing one day of work, the co-owner of Big Lake informed him he would have to get medical clearance before returning. e worker provided a doctor's note that said he was "currently unable to work under the circumstances at work until it has been resolved." He then accepted an off er of the same position with another logging compa- ny and worked off -and-on with the company for a few months. e worker fi led a workers' compensation claim indicating he had "found temporary work removed from these issues" and told the third-party administrator that "there are other places he can fi nd work temporar- ily until all of the union stuff is sorted." Big Lake learned of the worker's new job and had some back-and-forth communica- tion with him about his clearance to work. e worker said he was expecting clear- ance by the end of January, but in fact didn't have a doctor's appointment until Feb. 8. e owner of IFC and Big Lake felt that since the worker was doing the same work for another employer, he hadn't been forth- coming with his doctor about his illness and mental disability. Big Lake terminated the worker's employment for abandonment of position, working for another employer while on sick leave, and dishonesty. IF YOU SAID the worker was wrongfully dis- missed, you're right. e arbitrator found that the worker wasn't absent without leave, as Big Lake accepted his doctor's note and that he would be absent until matters were resolved. ere was no basis for the claim he had aban- doned his position, said the arbitrator. In addition, the work the worker was doing for another employer was not a ground for discipline, since the reason he was off work was the stress from the circumstances with Big Lake — circumstances that didn't exist at the other employer. e worker also didn't try to hide that he was working elsewhere, mentioning it in his workers' compensation claim and telling the administrator. "I fi nd that the worker did not abandon his position and was on an approved and medically bona fi de leave throughout the relevant period, and that the dismissal was without cause," said the arbitrator. " e ob- jective facts show that he was open about the alternate employment and that the work restriction was for Big Lake where he expe- rienced the stressors which brought on the symptoms, but not elsewhere; and that when he felt suffi ciently recovered he attempted to return to work at Big Lake." Big Lake was ordered to reinstate the worker without loss of seniority or pay. See Big Lake Logging Ltd. and USWA, Local 1 – 1937 (Neuwirth), Re, 2019 CarswellBC 512 (B.C. Arb.).

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