Canadian Employment Law Today

November 17, 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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THIS EDITION of You Make the Call features an Ontario automotive worker who claimed his employer's attendance policy discrimi- nated against those with non-work-related injuries. Steven Wallwork was employed as a produc- tion team member at an automotive assembly plant for Toyota Canada. His job duties includ- ed placing tire chocks behind the wheels of vehicles on rail cars before being transported. When placing the chocks, he kicked them with his foot to secure them in place. Wallwork called in sick on April 3 and 4, 2017, because he had injured his foot. When he returned to work on April 5, he brought a doctor's note from a walk-in clinic doctor that said: "To whom it may concern: This is to certify that Steven Wallwork states that he was unable to work for medical reasons." Wallwork didn't think the injury happened at work. About three weeks later, Wallwork called in sick again. He was absent for three days of work, returning on May 2. He provided an - other medical note from a different walk-in clinic stating that he had been unable to attend "work/school" on those days due to injury. The clinic doctor also diagnosed Wallwork with plantar fasciitis and gave him a form recom - mending rehabilitation and physiotherapy. Wallwork told the company nurse that he had been having problems with his right foot and had been told it was plantar fasciitis. He said it didn't know if it was work-related and wanted to proceed as if it was a non-occupa - tional injury. Toyota's attendance policy allowed em- ployees to take seven days of emergency leave in accordance with the Ontario Employment Standards Act, 2000. It also allowed for "plant accident days," where an employee missed work due to a work-related injury. When Wall - work returned to work on May 2, it informed him that he had used the maximum seven days of emergency leave. On May 3, Wallwork's family physician ex- amined him and told him that she believed his injury was work-related. Wallwork filed a workers' compensation claim and Toyota changed his absences from emergency leave to plant accident days. The Ontario Workplace Safety and Insur - ance Board (WSIB) approved health care benefits for Wallwork but denied him loss- of-earnings benefits for his absences, finding that "there is insufficient objective medical on file to support that you were unable to work at these times due to your injury." Toyota then changed his absences back to emergency leave, which put him at nine days for the year, above the limit under the attendance policy. Wallwork's supervisor had a "documented discussion" with him under the policy and ad - vised him that any further absences required more medical documentation or he could be placed on six months' probation and not be paid for the days he missed. Wallwork filed a human rights claim, alleg - ing that Toyota discriminated against him on the basis of disability by treating absences due to work-related injuries differently than ab- sences due to non-work-related injuries. ©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 YOU MAKE THE CALL Was the attendance policy discriminatory? OR Was the policy acceptable? IF YOU SAID the attendance policy was ac- ceptable, you're right. The Ontario Human Rights Tribunal found that Toyota did not treat work-related absences due to injury dif- ferently than non-work-related absences. Af- ter the WSIB approved Wallwork for health care benefits, there was no doubt that Wall- work's injury was work-related. The issue was how the emergency leave policy should be applied since the WSIB determined that Wall- work's injury didn't prevent him from work- ing, the tribunal said, adding that Toyota was justified in applying its attendance policy given the WSIB finding. The tribunal also found that the docu- mented discussion with the supervisor was the first step in the disciplinary process and Wallwork was subject to "heightened scru- tiny for taking additional sick days," but Toyota didn't discipline him when he initial- ly exceeded the emergency leave limit and waited for the WSIB's decision. Only when the WSIB determined that Wallwork could have worked during his absences did Toyota apply its policy. Ultimately, the tribunal determined that Toyota didn't treat WSIB-related absences differently than non-WSIB absences, as the only difference related to "the coding used to record the absences." Wallwork applied for reconsideration, but the tribunal found that while there was prima facie discrimination based on disability, Toyota established that its conduct wasn't discriminatory. Wallwork appealed to the Ontario Divi - sional Court. The court found that the infor- mation Wallwork provided about his inability to work "were forms from walk-in clinics set- ting out Mr. Wallwork's self-reported inability to work." The WSIB, after conducting a hear- ing with evidence from witnesses, determined that he could work — to which Wallwork did not object. Without further objective medical documentation, Toyota had no obligation to make a further assessment of Wallwork's abil - ity to work, the court said. The court dismissed the appeal, determin- ing that it was reasonable for the tribunal to conclude that Toyota's application of its at- tendance policy was not discriminatory. For more information, see: • Wallwork v. Toyota Manufacturing Canada Inc., 2021 ONSC 6785 (Ont. Div. Ct.). Emergency leave and plant accident leave — a discriminatory difference?

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