Canadian Employment Law Today

May 15, 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 Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE HAB PRESS, A SUBSIDIARY OF KEY MEDIA 312 Adelaide Street West Suite 800, Toronto, ON M5V 1R2 President: 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 Canadian YOU MAKE THE CALL Did the company discriminate against the driver by holding him to modified duties? OR Was the company entitled to put the driver on modified duties based on the medical evidence? IF YOU SAID the company was entitled to put Hoet on modified duties, you're right. e arbitrator found that the medical information wasn't clear, as the restrictions on ratchets or repetitive wrist and elbow movements meant he couldn't work as a truck driver — all of the trailers had a ratchet and none were modi- fied. Even though Hoet wanted to continue his regular job using curtain trailers, the in- formation the company had "was insufficient to allow (Hoet) to return to his regular job," said the arbitrator. Until the company had information that confirmed Hoet could go back to his regular duties — which it eventu- ally received in late January 2016 — the choice of how to accommodate was Prairie Pride's based on the information. e arbitrator also found that Prairie Pride never prevented Hoet from working with his disability, as it provided him with modified duties at his regular pay while the accommodation process moved along. "e employees' choice in pursuit of em- ployment is the right to be accommodated due to a disability and to work in a modified posi- tion to the point of undue hardship of the em- ployer," said the arbitrator. "In this case, (Hoet) did not have a choice to continue to work regu- lar duties when his disability called into ques- tion the ability to perform such duties." e arbitrator determined it was reason- able to place Hoet on modified duties pend- ing the functional assessment. See UFCW, Local 1400 and Prairie Pride Natural Foods Ltd. (Hoet), Re, 134 C.L.A.S. 268 (Sask. Arb.). Truck driver protests modified duties after injury THIS EDITION of You Make the Call fea- tures a truck driver who had medical limita- tions on the type of truck he could drive. Terry Hoet was a truck driver for Prairie Pride Natural Foods, a poultry processing plant in Saskatoon. Previously, he worked with another food company boxing hams, which involved repetitive work and led to him developing tendonitis in both arms. However, when Hoet applied for his job with Prairie Pride in 2008, he indicated on his application that he had no previous injuries or medical conditions that would prevent him from completing his duties as a truck driver as nothing had been bother- ing him recently. Prairie Pride used two types of trailers to haul poultry — a roll-up style with a ratchet crank that rolled and unrolled a tarpaulin and raised the operator's arms as the tarp went higher, and a curtain trailer that had the tarpaulin slide on rollers from side to side with a ratchet at the bottom. In 2012, Hoet told his supervisor his tendonitis was aggravated by using the ratchet on the roll- up trailer, so he was accommodated by only driving curtain trailers, which he could op- erate without any problems. In August 2015, Prairie Pride acquired a climate-controlled trailer that had better conditions for the poultry during transit. In November, the company informed its driv- ers that the new trailer was to be used every day to haul broiler chickens and all full-time drivers would be assigned a week each with that trailer. Any driver who refused to use the climate-controlled trailer would be con- sidered to be resigning from their position with Prairie Pride. Hoet asked the logistics manager to be excused from using the climate-controlled trailer as he believed it would aggravate the tendonitis in his arms. He was told to get a doctor's note, so he submitted a note stating he had to avoid lifting and repetitive work. He later submitted a physical assessment analysis form from his doctor that indicated he could lift up to 20 kilograms and could not use a ratchet. e company was concerned about the ratchet restriction, as all of its trailers had ratchets. is included the new climate- controlled trailer, which was similar to the curtain trailers but had multiple ratchets to operate various tarp modules. Hoet had another assessment analysis performed by his doctor, which stated Hoet could only use modified trailers with "no re- petitive movements of wrists and elbows." is concerned the company, as it didn't have any modified trailers and previously there hadn't been a restriction on repetitive movements for Hoet's wrists and elbows. Management met with Hoet and he in- sisted he could continue to operate curtain trailers. However, Prairie Pride decided to place him on modified duties at his regular pay as of Dec. 28, 2015, that met his stated restrictions until it could get a full occupa- tional assessment. e occupational assessment was per- formed on Jan. 18, 2016, and the ensuing report recommended Hoet only use the cur- tain trailer, as he had "a high risk of harm if he were to use the ratchet strap on a repetitive basis." It also concluded he could "immedi- ately resume his duties as a driver on the cur- tain style trailer." His first shift was scheduled for Jan. 31. e union filed a grievance complaining Prairie Pride didn't meet its duty to accom- modate and discriminated against Hoet when it put him on modified duties for one month — the modified duties cost Hoet op- portunities for overtime as a regular truck driver that he could have performed while driving the curtain style trailer.

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