Canadian Employment Law Today

November 6, 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 ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. 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, mechanical, photo - copying, 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/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Worker injures his ankle, gets fired for dishonesty THIS EDITION of You Make the Call features a worker who was fired for dishonesty while off work on medical leave for an injury he sustained at work. CKF is a manufacturer of food service and packaging products in Etobicoke, Ont. In June 2017, CKF hired a machine opera- tor on a probationary basis. e position of machine operator involved a lot of physical activity such as heavy lifting, bending and standing for long periods of time, so CKF required the worker to attend a medical screening. However, the company allowed him to start working before he completed the screening because the health provider cancelled the appointment. Just under one month later on July 3, the worker injured his ankle at work. According to the worker, he "rolled" his ankle and he provided a short note from his doctor stating he would be off work for medical reasons. His doctor also completed four return-to- work forms outlining his medical limitations and the worker filed a claim for workers' compensation. CKF assigned the worker to sedentary du- ties as accommodation. Eventually, those du- ties ran out and, since the worker still wasn't able to return to his regular duties, the com- pany placed him on unpaid leave. In August 2017, the worker's doctor completed a form that indicated the worker wasn't able to work in any capacity for a period of two weeks. CKF reviewed the doctor's form and some documentation from the worker's compensa- tion claim with WorkSafeBC. It became evi- dent that the worker had told WorkSafeBC that he had aggravated his ankle when he tripped at home — something he hadn't men- tiond to CKF — and he had reported a much higher income than he actually earned. In addition, some CKF employees in- formed the company that they had seen the worker outside of work engaging in physical activity and performing tasks that weren't consistent with medical reports re- garding the severity of his ankle injury. CKF decided to hire a surveillance company to monitor the worker. Based on the surveillance reports, CKF determined that the worker was able to bear weight on his injured ankle. e company's health and safety officer scheduled a meet- ing with him to discuss a return to work, while the HR manager decided to attend to discuss concerns about his honesty and re- quested the worker's supervisor and a union representative also attend. e meeting took place on Aug. 24. e worker was asked why he misrepre- sented his income, but the worker denied doing so. He was also asked why his recov- ery seemed slow, to which the worker re- plied that he had a pre-existing condition in his ankle due to an electrocution — some- thing he hadn't disclosed on his medical form when he was hired, although he re- ceived workers' compensation benefits af- ter the electrocution. CKF management felt the worker was disrespectful, arrogant and rude during the meeting. Afterwards, the HR manager con- firmed with the health provider that it had been the worker who had rescheduled the medical screening appointment. CKF felt the worker wasn't suitable for the machine operator position because he was dishonest and disrespectful, so it terminated his proba- tionary employment. e worker filed a human rights com- plaint, claiming CKF discriminated against him based on his disability when it termi- nated him while on leave due to a work- related injury. Emplo y ment Law Today Canadian YOU MAKE THE CALL Was there just cause for dismissal? OR Was the termination discriminatory? IF YOU SAID the employer had just cause for dismissal, you're right. e B.C. Human Rights Tribunal found that the worker was dishonest about multiple things. He lied in the meeting when he said the health pro- vider had cancelled his medical screening appointment, he apparently provided false information to WorkSafeBC about his in- come and he withheld medical information on the medical form required as part of his hiring. In addition, the company had con- cerns about the extent of his injury that the worker didn't fully address, instead acting in a hostile manner in the meeting. e worker claimed CKF fired him because they believed he was exaggerating his injury, which could be a connection between the dis- missal and the injury. However, the tribunal found that CKF had other, non-discriminato- ry reasons to dismiss him and the injury itself wasn't a factor in the decision to terminate his probationary employment. In addition, it was likely the worker's injury would have resulted in ongoing accommodation costs for CKF as it would heal before too long, said the tribunal. "While [the worker's] disability and the [employer's] suspicions about his disability existed when these events occurred, I am persuaded that his disability was not a fac- tor in his termination," the tribunal said in dismissing the worker's claim. "e weight of the evidence shows [the worker] was fired because [the employer] genuinely per- ceived he was dishonest when he completed the form, reported his income to [Work- SafeBC], and in his answer about his medical screening appointment, and that he behaved poorly in the meeting." For more information see: • Starrett v. CKF and others, 2019 BCHRT 173 (B.C. Human Rights Trib.).

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