Canadian Employment Law Today

Canadian HR Reporter, 2020 February 12, 2020 | Canadian Employment Law Today During the investigation, Taiko tried to get the worker to make a statement in writing about the Feb. 19 incident, but the worker refused, saying he couldn't relive the circum- stances without becoming upset. The com- pany contacted the worker by phone, but verbal discussion of the incident also caused problems for the worker, so the company stopped calling. On April 26, Taiko terminated the worker's employment for violating company policy by abandoning a load and team driver without cause, failing to observe and comply with company policies, not co-operating with the investigation and failing to comply with the federal Explosives Act by smoking too close to explosives while transporting them — the latter being a criminal offence. The worker claimed he was unjustly dis - missed during his medical leave — without any progressive levels of discipline — and was constructively dismissed by Taiko's fail- ure to act on his sexual assault allegation and the creation of an unsafe workplace when his last partner drove dangerously. Taiko argued that the worker terminated his employment when he abandoned the load and his partner of Feb. 19. Legitimate mental health issues The adjudicator found that Taiko should have taken the doctor's note into consideration when it determined that the worker aban - doned the load and his partner. The note stated that the worker was unable to work for five days and the worker explained that he had gone to see a doctor. This amounted to "a disregard for mental illness as 'illness' for which medical advice can be necessary," said the adjudicator, adding that Taiko probably wouldn't have taken the same position if the worker had suffered a physical injury requir - ing medical attention. The adjudicator also found that Taiko wasn't fair when it pressed the worker for a written statement about the incident even though it was clear he was having men - tal health issues and told them he couldn't do it. There was no reason the information the worker texted to the general manager couldn't be sufficient, as it included a picture of the doctor's note and videos of the part - ner's actions that contributed to the worker's stress, said the adjudicator. In addition, the adjudicator didn't make enough of an effort to contact the worker be- fore his dismissal. The worker couldn't write a written statement or talk on the phone, but the company didn't try sending him a letter that outlined what it needed — or some oth- er method of communication. It also didn't make any efforts to obtain further medi- cal information, which it should have if it doubted the illness, said the adjudicator. "I do not find that [the worker] failed to co-operate in the investigation; rather I find that Taiko did not conduct an appropriate investigation, nor did Taiko use the infor - mation [the worker] had already provided to 'investigate' significant and serious mis- conduct of another driver, or communicate appropriately with a mentally ill employee if it determined it required further information regarding his absence," the adjudicator said. The adjudicator determined that the work- er left the load and his partner because of a medical condition and Taiko unjustly used it as grounds for dismissal. It also found that Taiko constructively dismissed the worker when it: • Failed to address the worker's complaints of sexual harassment and safety with his partners; • Placed a hold on his pay after the Feb. 19 incident; • Made no effort to determine if the worker could be reintegrated into the workplace; • Suspended the worker with no evidence to justify it. Taiko was ordered to pay the worker 21 weeks' pay, from February 2017 to July 2017, when he was able to work again, plus $5,000 in aggravated damages for the company's "high-handed and oppressive" conduct in its poor handling of a mentally ill employee. The total damages amounted to $45,990 minus employment insurance sick leave benefits. For more information, see: • Thomas and Taiko Trucking, Inc., Re, 2019 CarswellNat 5874 (Can. Lab. Code Adj.). ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information. CREDIT: MIKE FLIPPO SHUTTERSTOCK

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