Canadian Employment Law Today

October 20, 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 with WorkSafeBC. In early 2011, Petrovic started a new shift picking up and delivering goods in three nearby cities. This position required him to load and unload goods on pallets weighing up to 2,000 pounds with a manual pallet jack. In August of that year, he injured his back while loading and unloading his truck, which again led to lower- back pain radiating into his legs. He reported the injury to TST and WorkSafe BC. He suffered another back injury in May 2012, which he again reported. Surgery followed by medical leave Petrovic's back pain worsened to the point where he had to have surgery in July 2012. He was on medical leave with short-term disability benefits until April 2013, but he was unable to claim workers' compensation benefits because WorkSafeBC determined that he didn't suffer the injury during the course of his employment. In April 2013, Petrovic's doctor completed TST's standard work capabilities form indicat - ing that Petrovic could gradually return to work with restrictions of local driving only, no heavy lifting, and no pushing, pulling or carrying. TST determined that Petrovic was still medically incapable of returning to his full-time driving position that involved heavy lifting and driving between three nearby cities. Petrovic's short-term disability benefits wrapped up and he went on unpaid leave. He then received employment insurance benefits for a few months followed by provincial income assistance payments. Eventually, the province designated Petrovic as a person with disabilities and began paying him disability benefits. In May 2014, Petrovic provided another work capabilities form in which his doctor said that he could return to work with restrictions such as driving no more than two hours per day with no lifting. However, TST maintained that it was un - able to find suitable accommodation with the specified medical restrictions, as it didn't have any part-time driver positions. Company claimed frustration of employment On June 6, 2014, TST offered Petrovic a sever- ance payment of $3,500 "for the frustration of the employment relationship." Petrovic de- clined the offer. In August, the company again said it was unable to provide accommodation based on the information it had about Petro- vic's medical restrictions, but it said it was will- ing to continue to review the matter and consid- er other opportunities, such as a clerical office position, if Petrovic submitted his resumé. The union asked Petrovic for his resumé, an update on his medical restrictions, and a list of any jobs he believed that he could do with TST by Sept. 11. However, Petrovic didn't provide any information and accused both TST and the union of breaching their fiduciary obligation to him. He added that "I am not capable of accepting work due to my injury; otherwise I would have been employed long ago." TST ultimately determined that Petrovic couldn't perform any clerical office job because his English was limited and he had no office skills such as telephone reception or computer operations. It also looked at a job in a guard shack, but that required too much climbing to access it and constant standing, which was con - trary to his restrictions. TST terminated Petrovic's employment on Sept. 11, 2014, for the lack of medical progress since the injury and Petrovic's "continued in- ability to perform any kind of work." The com- pany paid the $3,500 in severance that it had previously offered him and stated that it was un- able to accommodate him because of his severe medical restrictions. Petrovic filed a human rights complaint claiming that TST discriminated against him on the basis of disability by denying his request to return to work with limitations and ultimately refusing to continue to employ him. The tribunal noted that there was no dispute that Petrovic's back injury that he suffered at work constituted a physical disability and TST didn't permit him to return to work because it was concerned about how his disability would impact his ability to safely perform his job. When TST said it couldn't accommodate him and then terminated his employment, Petrovic suffered from an adverse impact that was relat - ed to his disability, the tribunal said. With prima facie discrimination established, TST had to establish that its discriminatory conduct was based on a bona fide occupational requirement and it took reasonable steps to accommodate Petrovic to the point of undue hardship. The tribunal found that TST had to ensure drivers could perform their jobs safely and ef - fectively — safety was a priority in the trucking industry — which was rationally connected to the performance of the job and was adopted in an honest and good-faith belief that it was nec - essary to fulfil the job's purpose. The trucking in- dustry was regulated under federal, provincial, local, and international authorities and TST had to follow those regulations. In addition, driv- ers had to perform truck inspections, load and unload their cargoes, climb up into truck cabs, crank dolly wheels, and tie down cargo. These were all physical activities which Petrovic was unable to do, said the tribunal. The tribunal noted that both work capabili - ties forms completed by Petrovic's doctor indi- cated restrictions that prevented Petrovic from driving a truck, so TST couldn't begin a gradu- ated return-to-work program because his medi- cal conditions "were too severe to return him to his previous truck driving job." In addition, the company had no part-time truck drivers. The tribunal also found that TST looked into accommodating Petrovic with clerical work, but he didn't have the technical or language skills necessary. He was also considered for a guard shack job, but it didn't meet his medical restrictions. The tribunal noted that the evidence indi - cated that Petrovic didn't trust either TST or the union, so there was poor communication and limited participation in the accommodation process. In addition, Petrovic indicated in Sep- tember 2014 that "I am not capable of accepting work due to my injury." The tribunal determined that Petrovic's medi- cal restrictions prevented him from returning to his old truck driver job and TST wasn't required to create a new part-time position for him. Petrovic was also not qualified for other jobs that were considered, so the company reached the point of undue hardship after investigating all possibilities of accommodation. The tribunal found that TST met its duty to accommodate to the point of undue hardship and dismissed the complaint. For more information, see: • Goran Petrovic and TST Overland Express, Re, 2021 CHRT 26 (Can. Human Rights Trib.). 6 | | October 20, 2021 October 20, 2021 « from INJURED on page 1 Cases and Trends Cases and Trends Worker said he was incapable of accepting work due to his injury CREDIT:OLM26250 iSTOCK The company determined that the worker was medically incapable of returning to his full-time driving position that involved heavy lifting and full- time driving.

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