Canadian Employment Law Today

May 5, 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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Canadian HR Reporter, 2021 er was still a job at City Tire when he was cleared to return to work but City Tire didn't want to return him to the position. While the company may not have intentionally discriminated against him and just wanted to keep the replacement employee, the result was that Philpott was terminated while on sick leave, making the sick leave a factor in his termination, said the board. In addition, Philpott was denied the op - portunity to take on the extra service advi- sor duties that had come about after the ser- vice advisor had left. City Tire didn't only deny Philpott a return to his old position with modified duties but found someone else to do the modified duties while he was still on sick leave. This also indicated that Philpott's disability was a factor in his ter - mination, the board said. The board agreed that City Tire adopted the new job standard with service advisor duties for a legitimate business purpose and in an honest and good-faith belief that it was necessary. However, it also found that the company made no effort to see if it could accommodate Philpott. The com - pany never told Philpott that if he didn't take on the modified duties his job could be in jeopardy and, therefore, didn't give him the chance to change his mind about those duties before terminating his employment, the board said. "There is a duty to accommodate Mr. Philpott, [and] in meeting that duty City Tire were required to bring him back to work once he was cleared for work, he was to be given the opportunity to fulfill his job including any modified duties and he was not given that opportunity," said the board. "Mr. Philpott was never given the opportu - nity, he was not given an ultimatum, it was not explained to him about the changes because of a service advisor leaving and for economic and business reasons the driver duties were to be modified." City Tire was ordered to pay Philpott compensation for loss of income from the time of his dismissal to July 31, 2016 — a reasonable date that his employment at City Tire could be expected to end — minus any employment income and employment insurance benefits he received, plus $7,000 to compensate for loss of dignity, self-re - spect, hurt feelings and mental distress. For more information, see: • Philpott and City Tire and Auto Centre Ltd., Re, 2020 CarswellNfld 383 (N.L. Bd. of Inq.). May 5, 2021 | Canadian Employment Law Today CREDIT: RAPIDEYE iSTOCK 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. CELT_Issue_30 MAY 5 FINAL.indd 5 CELT_Issue_30 MAY 5 FINAL.indd 5 4/21/2021 4:04:05 AM 4/21/2021 4:04:05 AM

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