Canadian Employment Law Today

May 29, 2013

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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CELT May 29 2013:celt 467.qxd 13-05-15 4:34 PM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS MAY 29, 2013 Disabled worker wins reinstatement —after 10 years School board worker, who was ready to return after 3 years, awarded more than $400,000 job that didn't involve liability for | BY JEFFREY R. SMITH | health and safety issues and, as a THE ONTARIO Human Rights Tribunal result, her long-term disability benehas ordered an employer to reinstate a fits ended. However, no position was terminated employee after a finding of forthcoming from the school board and discrimination based on disability – a on July 8, 2004, her employment was decade after the terminated. Fair filed a employee last worked. human rights complaint Sharon Fair worked in November 2004, claimDISCRIMINATION for the Hamilton-Wenting she was discrimiworth District School nated against based on Board beginning in 1988. In 1994, she her disability and she was entitled to became Supervisor, Regulated Sub- reinstatement. stances, Asbestos for the board. The Discrimination complaint bogged down job was highly stressful for Fair and The complaint languished before she became afraid she would make a mistake about asbestos removal, caus- the Ontario Human Rights Commising her to be held personally liable for sion and Fair took it to the Human a breach of Ontario's Occupational Rights Tribunal in 2009 after the Health and Safety Act. Fair's fear pro- province's human rights regime was gressively worsened and, by the fall of revamped. The school board argued 2001, she developed a generalized anx- the positions that became available both involve some liability for health iety disorder. Fair went on leave and received and safety and the medical informalong-term disability benefits through tion it had was that Fair couldn't have any position with the Ontario Teachsuch liability. ers Pension Plan. 'Complexity of the issues' was The tribunal In the summer of one reason for the delays found the school 2003, two superviboard had suffisory positions in other departments became available – cient information that Fair could work in including a staff development supervi- the staff development supervisor posisor position in the same department tion in the same department where she where Fair was volunteering as part of had been volunteering, since she had a work hardening program and for consulted with her doctor about it and which the school board invited her to expressed her willingness to do it. In apply – but the board didn't offer addition, though the two positions had some health and safety liability – as all either job to her. On April 3, 2004, Fair was assessed such positions have to some extent – as capable of gainful employment in a Continued on page 6 In T h is I s s u e ASK AN EXPERT: Determining a payroll • Failure to return from leave CASES AND TRENDS: Unpaid internships a costly risk for employers 2 3 CASE IN POINT: 'Crackhead' comment cracks employment relationship 4 YOU MAKE THE CALL: Hospital pulls plug on disappearing ER porter 8 Restructured job without supervisory duties not constructive dismissal A LATERAL move offered to an employee as part of a restructuring plan was not a constructive dismissal, the British Columbia Supreme Court has ruled. Warren Meyers, 48, was the applications development team lead for Chevron Canada, having reached that position during his 16 years in the information technology (IT) department for the company. The position was a working supervisory role and he had up to five employees and three contractors reporting to him at various times. His own work accounted for most of his role, while the supervisor duties took up 20 to 30 per cent of his job. In 2010, Chevron implemented a restructuring process to deal with the global financial crisis. IT services in Canada were centralized and all IT jobs were eliminated with new positions created. The new positions Continued on page 7

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