Canadian Employment Law Today

September 25, 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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Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, 2019 the morning after his second night shift and keep her for the next two nights that he was off before dropping her off either at school in the morning of the third day or at her moth- er's house in the evening. On Jan. 4, 2016, the tip of one of Linklat- er's fingers on his right hand was crushed between two steel plates. e doctor who treated him wrote a note that indicated Lin- klater would be unable to use his right hand for work because of the injury — meaning Linklater wouldn't be able to perform the tasks of his coil handler position. An assess- ment was scheduled for three weeks later. Despite his injury, Linklater came to work on his next four scheduled shifts. Because he was unable to do his regular job duties, he was assigned to help another worker with tasks that were within his restrictions. How- ever, it became evident that the modified work Linklater was doing wasn't of value and the company determined he would be of bet- ter use performing office work. e superintendent in charge of the facility and Linklater's supervisor decided to assign Linklater to speak to all employees about the company's job safety practice manual. ey set him up in the lunchroom where he could speak to employees as they came in, let them review the manual and then have them sign off that they had seen it. In order to ensure he saw employees on both the day and night shifts, Linklater would have to work in the lunchroom on eight-hour shifts from 7 a.m. to 3 p.m. Monday to Friday. Worker objected to change but didn't specify why e shift change reduced Linklater's hours to 40 every week from 48 every eight days and he lost a shift premium for working two night shifts every week. Linklater objected to the change and said it would also disrupt or impact the time he could spend with his children — though he didn't mention custody access was based on his 12-hour shift schedule. Linklater met with the superintendent and said he wanted to stay on 12-hour shifts for "family reasons, money." e superin- tendent said Essar Steel wouldn't pay two people to do one job, so Linklater couldn't remain as a coil handler technician if he could not perform the duties of the posi- tion. In addition, it was standard procedure at the facility to move injured workers to eight-hour shifts when they were unable to do their regular job. Linklater remained unhappy about the arrangement, but he began working the eight-hour shift on Jan. 13. He unsuccess- fully asked again to be moved back to 12- hour shifts, though during the first week there was no conflict with the custody order. Finally, he took his concerns to his union, which sent an email on Jan. 22 out- lining Linklater's "court ordered access to a child which he is now not able to follow be- cause of a schedule change" and requested a return to the 12-hour shift schedule. e first conflict with the custody order happed on Jan. 25 — a day on which the worker would have been off on the old 12- hour shift schedule and dropped his daugh- ter off at school at 8:45 a.m. Because his eight-hour shift started at 7 a.m., Linklater had to arrange for his ex-wife to pick their daughter up the previous evening, costing him a night and a morning with her. Linklater met with the superintendent and his supervisor on Jan. 27 to discuss op- tions. ey asked Linklater to come up with a different solution, but he insisted that go- ing back to the 12-hour shifts was the only thing that would work with his custody or- der. Management agreed to return him to 12-hour shifts once he had medical clear- ance to do at least one of the five jobs on the 12-hour shift rotation. Linklater received that clearance soon after and returned to the 12-hour shift on Feb. 4. However, Linklater filed a human rights complaint alleging that, for the period before his return to the 12-hour shift, Essar Steel discriminated against him based on his dis- ability because he earned less in the accom- modated position — with fewer hours and no shift premium for two night shifts each week — and based on his family status when it failed to accommodate his child custody obligations by changing his work schedule. e tribunal found that when Linklater was initially taken off the 12-hour shift, his restrictions prevented him from performing any of the jobs available on that shift. With- out work for him on the shift, it was reason- able for Essar Steel to move him to the eight- hour shift where there was work he could do. Linklater's restrictions didn't say he couldn't work 12-hour shifts, but he wasn't entitled to stay on that shift if he couldn't do the work, the tribunal said. e tribunal also found that Linklater didn't inform Essar Steel of his court-ordered custody arrangement when discussing ac- commodation options. e company was un- aware of it until the union's Jan. 22, 2016 letter. Before then, Linklater had expressed displea- sure with the shift move but not the reason why. In addition, at the time of the union's let- ter, Linklater had yet to lose any time with his child and the letter didn't indicate a specific conflict was coming up on Jan. 25. Once Essar Steel became aware of the con- flict, it took measures to rectify the situation, agreeing to move Linklater back to 12-hour shifts as soon as he provided medical clear- ance. When he did, the move was made im- mediately. As a result, Essar Steel met its duty to accommodate once it was aware of the need for accommodation and would likely have taken steps to address the Jan. 25 conflict had it known earlier, the tribunal said. "[Essar Steel] took appropriate actions based on the information it had, and when advised that there were issues which re- quired accommodation, it took further steps to address [Linklater's] concern, which resulted in [Linklater] returning to his pre- ferred shift," said the tribunal, adding that it was up to the company to determine the method of accommodation, not Linklater, who wanted only to return to 12-hour shifts and refused to consider other options. e tribunal also found that because Lin- klater couldn't do the jobs on the 12-hour shift, the loss of the night-shift premium and the difference in hours — totalling about $250 during the three weeks Lin- klater was on the eight-hour shifts — wasn't discrimination. Linklater was paid for the work he performed and wasn't entitled to be paid as if he could perform the jobs on the 12-hour shift. e tribunal determined that Essar Steel did not discriminate against Linklater's family status or disability and dismissed his complaint. For more information see: • Linklater v. Essar Steel Algoma Inc., 2019 HRTO 273 (Ont. Human Rights Trib.). « from NO DISCRIMINATION on page 1 Employer acted on the information it had from the employee tion in all matters involving personal infor- mation and particularly workplace video surveillance. In addition to the privacy is- sues, employers must be aware that video surveillance may erode the employment re- lationship due to distrust. For more information see: • Canada Safeway Ltd. v. U.F.C.W., Local 401, [2005] A.G.A.A. No 109 (Alta. Arb.). • Calgary Herald v. GCIU Local 34-M, [2004] A.G.A.A. No. 23 (Alta Arb.). • Woodstock (City) and Woodstock Profes- sional Firefighters' Assn. (Video Surveil- lance), 122 C.L.A.S. 307 (Ont. Arb.). • Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (Ont. S.C.J.). Tim Mitchell practises management-side la- bour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or « from ASK AN EXPERT on page 2 Trend toward protection of personal privacy

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