Canadian Employment Law Today

April 21, 2021

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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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. 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#: 79990 3547 RC-0001 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 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call in- volves a worker who missed an all-employee meeting that took place while he was on sick leave that was related to an opportunity to transfer to another company before a layoff happened. The worker was employed as an operator for Alberta Highway Services (AHS), an Ed- monton-based company that performs high- way maintenance across Alberta. He began his employment in November 2018. A few months into his employment, in February 2019, AHS was unable to secure a renewal of its highway maintenance con- tract with the province and the contract went to another company. A short time later, the worker went on stress-related sick leave, at the recommendation of his doctor, running from March 11 to April 15, 2019. The company that had won the high- way maintenance contract decided to hold a meeting with AHS employees to discuss transferring their employment for the pur- poses of doing the work for that company. On March 12, the day after the worker be- gan his sick leave, the maintenance division manager for AHS notified supervisors to in- form all of their employees about the meet- ing, which was set for April 9. The memo notifying employees about the meeting was distributed only in the workplace, so the worker didn't see it. Two days before the meeting, the mainte- nance division manager sent an email to his subordinates, to be passed on to employees, reminding them of the meeting. The worker was still on sick leave, so he didn't receive the email. The next day, April 8, he saw a post about the meeting on a company bulletin board. The same day, other AHS employees provided him with details. However, the meeting was to be conducted during paid work hours. Employees on medi- cal leave had to obtain a doctor's clearance to attend the workplace for any reason, includ- ing the meeting, and the worker was unable to get clearance on such short notice. As a result, he missed the meeting. AHS provided the names of all employees that were unable to attend the meeting, in- cluding those on sick leave such as the worker, to the other company for consideration for of- fers of employment. Wilson filed a human rights complaint, claiming that AHS failed to notify him in a timely manner of the meeting about transfer- ring employees to the new company while he was on sick leave, which denied him the op- portunity to move to the new company. He claimed this was adverse treatment in the area of employment that was related to physical and mental disabilities for which he had been on sick leave. YOU MAKE THE CALL Did the employer discriminate against the worker when it didn't notify him of the meeting while he was on sick leave? OR Was there no discrimination? IF YOU SAID there was no discrimination, you're right. The tribunal found that AHS accommodated the worker's medical issues by granting him sick leave for five weeks in March and April 2019. It also found that the policy requiring employees absent on sick leave to obtain medical clearance to attend the workplace was reasonable and applied equally to every employee. In addition, it was part of the employee's medical leave terms and AHS' overall obligation to re- spect medically supported leave, the tribu- nal said. The tribunal also found that the worker didn't suffer from adverse treatment related to the transfer of employment to the other company. The worker was aware of AHS los- ing the provincial contract before he went on medical leave and that AHS was taking steps to facilitate a potential transfer. The manner in which the company notified its employees of the meeting was a management decision that didn't appear to be discriminatory in any way for the purposes of the Alberta Human Rights Act, said the tribunal. The tribunal noted that AHS passed on the worker's name to the other company for consideration for the transfer, so he wasn't ex- cluded from the opportunity. For more information, see: • Wilson v. Alberta Highway Services Ltd., 2021 AHRC 37 (Alta. Human Rights Trib.). Worker on sick leave misses important meeting Employees on medical leave needed medical clearance to attend the workplace for any reason. The manner of notification was a management decision that didn't appear to be discriminatory.

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