Canadian Employment Law Today

©2020 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, 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/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call involves an Ontario worker whose position became unavailable while he was on medical leave. Michael Horgan, 63, was a warehouse man- ager with KRG Logistics, a freight transporta- tion and warehousing company in Mississau- ga, Ont. He was hired in May 2003. In 2015, Horgan was diagnosed with cancer and went on medical leave. Horgan spoke to KRG's vice-president outside of work in De- cember 2016 and mentioned that his health was improving and he might be able to return to work soon. However, a few weeks later, the vice-president sent him a text message saying that KRG was experiencing financial difficul- ties and the warehouse would soon be closing, making Horgan's position no longer available. On Aug. 7, 2017, Horgan's disability ben- efits were stopped because the insurer deter- mined that he could perform sedentary work. This led to financial stress, as he had to resort to using his retirement savings and anxiety over not having a job at the age of 60. Horgan con- tacted KRG to say that he hadn't quit and KRG hadn't fired him, so he expected to receive sev- erance pay. KRG told him it had checked with the Ontario Labour Board and it didn't owe him any severance, noting that it would "vigor- ously defend" any claim for severance. Horgan heard from former co-workers that the warehouse remained open and his posi- tion had been filled by someone else. However, he wasn't given a termination letter, record of employment or termination pay. Eventually, the warehouse closed and operations were moved elsewhere. In January 2018, Horgan's legal counsel sent a letter to KRG demanding wrongful dismissal damages and claiming KRG breached the On- tario Human Rights Code by failing to return him to work or accommodating his health needs. He claimed 15 months' salary in lieu of reasonable notice of termination plus com- pensation for loss of dignity. YOU MAKE THE CALL Was the worker discriminated against? OR Was accommodation of the worker not possible? IF YOU SAID the worker was discriminated against because of his disability, you're right. The tribunal noted that a protected ground under the Human Rights Code need only be a factor in the decision that adversely affected the applicant, not the primary reason. There was no question Horgan had a disability and suffered an adverse impact when his employ- ment was effectively terminated when he was never returned to work, it said. The tribunal also noted that it was un- clear how long the warehouse was open and whether his position was available, but this wasn't necessary to determine the issue. It was clear that Horgan indicated that he was will- ing to return to work in December 2016 but was soon told "vaguely" that his position may no longer be available. After this, KRG provid- ed no formal notice of termination or contact of any kind, said the tribunal. In addition, the tribunal found that KRG didn't offer to return Horgan to work when he reached out after his disability benefits end- ed, despite the fact that he was cleared to work with medical restrictions in a sedentary posi- tion. Instead, the company "took an aggres- sive position and (incorrectly) maintained that KRG owed him nothing." In addition, KRG provided no evidence that the ware- house manager position had been eliminated or that there weren't any other jobs Horgan could perform. "At no time while [Horgan] was on medical leave or after he was cleared to return to work did KRG ever explore whether [Horgan] could return to his own position, or any other po- sition," said the tribunal. "They never turned their mind to whether [he] required accom- modation." Without a "rational non-discriminatory explanation" for refusing to return Horgan to work — which effectively terminated Hor- gan's employment — the tribunal found that KRG discriminated against Horgan because of disability. KRG was ordered to pay Horgan compensation for wage loss from the time he was able to return to work — when his dis- ability benefits ended on Aug. 7, 2017 — to the date of the tribunal hearing on Oct. 2, 2019 — a period of 26 months, minus wages Horgan had earned with a lower-paying sed- entary job he started in June 2018. The tribunal also added $30,000 in dam- ages as compensation for injury to Horgan's dignity, feelings and self-respect due to the fi- nancial stress, anxiety and discrimination he suffered. This put the total award at $134,234 plus interest. For more information, see: • Horgan v. KRG Logistics Inc. a.k.a. GLOBAL- 3PL, Inc., 2019 HRTO 1624 (Ont. Human Rights Trib.). End of disability leave leads to logistical nightmare After the worker said he could return, the employer said his position would soon no longer be available.

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