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
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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.
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