Canadian Employment Law Today

September 22, 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 EDITION of You Make the Call involves an Alberta worker who claimed his layoff after leaving work due to a medical issue was dis- crimination based on a physical disability. Jeffrey Gearey was hired to work for CIMS Limited Partnership, a heavy industrial me- chanical contractor, in July 2015. His position was classified as a "permit, non-member," which meant that he was one of the first on the list for layoffs if there was a shortage of work. Gearey had petit mal epilepsy and took medication to manage the condition. With medication, he was medically cleared to work without restrictions. CIMS was aware of his condition when it hired him. Gearey worked for several days, but soon he felt ill at work and saw the onsite health servic - es. He was given two electrocardiograms and sent to hospital by ambulance. At the hospital, he was assessed for an apparent heart incident and released. However, Gearey wasn't given medical clear - ance to return to work. CIMS arranged to have Gearey transported to Edmonton, where he would be assessed by a cardiologist to see if he could be given medical clearance. He was ad- mitted to a heart institute in Edmonton but, while there, CIMS informed him that he was being laid off due to a shortage of work. CIMS also laid off 11 other employees at the same time and issued a Record of Employment stat - ing "shortage of work" as the reason. Work at the site was completed in December. The heart institute released Gearey with full clearance to return to normal work du - ties without restrictions. However, when he visited the union's offices, he was told that CIMS had placed a "no rehire/no dispatch" notation on his file. The union told him that it didn't know why he was being refused rehire with CIMS, but it said that it wouldn't file a grievance. Gearey launched a human rights complaint alleging that CIMS discriminated against him in the area of employment on the ground of physical disability. He claimed that he was put on a no-hire list because of his epilepsy and his medical incident at work, although the no- hire notation that he said was in his file went missing — which he suggested was because of a conspiracy between CIMS and the union. CIMS denied that it discriminated against Gearey, pointing to his "permit, non-member" status and the fact that other employees were laid off at the same time. It said there wasn't a no-hire notation but rather a requirement for full medical clearance before it could bring him back for any available work. CIMS also pointed out that Gearey hadn't actually seen a no-hire notation, only that the union had told him about it. YOU MAKE THE CALL Was the layoff appropriate and non-discriminatory? OR Did the company discriminate against the worker because of his physical disability? IF YOU SAID the layoff was non-discrimi- natory, you're right. The tribunal noted that Gearey's "permit, non-member" status meant that he would be one of the first workers to be laid off in the event there was a shortage of work and, given the fact that 11 other employ - ees were laid off, it was likely that there was a shortage of work. In addition, the Record of Employment stated as much, the tribunal said. The tribunal also found that there was no evidence that CIMS actually placed the no- hire notation in Gearey's file. Gearey said the union told him about it, but it agreed that he hadn't actually seen it. There was no evidence that the union and CIMS conspired to hide the notation and no evidence that it was ever in Gearey's file, the tribunal said. The tribunal found that Gearey had a "firm belief" that he was issued a no-rehire notice, but this belief wasn't supported by any evi - dence that it existed. In addition, the evidence indicated that the layoff was due to a shortage of work and had nothing to do with Gearey's disability. The tribunal dismissed the com- plaint. For more information, see: • Gearey v. CIMS Limited Partnership, 2020 AHRC 47 (Alta. Human Rights Trib.). Worker's layoff after leaving work sick leads to discrimination claim CREDIT: NARONGRIT SRITANA iSTOCK

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