Canadian Employment Law Today

October 2, 2013

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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CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Employee's complaint painted as layoff request Employer claimed employee asked to be laid off, but more likely employer wanted to avoid WSIB costs PM40065782 | BY JEFFREY R. SMITH | Employee suffered hand injury at work On Jan. 2, 2012, Makholi fell down AN ONTARIO company wrongfully dis- while working and injured his right missed an employee who didn't under- hand. He told the lead hand it was sore stand English very well when he but the lead hand told him to keep signed a form stating he was resigning, working. The next day, his hand hurt an arbitrator has ruled. even more and he informed the lead Shahab Makholi, 42, was a welder hand again, who didn't say anything. for Daybar Industries, a manufacturer Makholi worked his whole shift. of fire doors and fire door frames On Jan. 4, Makholi's hand was located in Mississauga, swollen, so he went to the Ont. An immigrant from hospital. It turned out the WRONGFUL Iran, Makholi's English hand was fractured and DISMISSAL was limited — he could he had to have a splint speak it to a certain put on it. extent, but couldn't read or write with Makholi arrived at work with the it. Because Daybar had other employ- splint the next day and started perees who spoke Persian, and he could forming his regular duties, but it was understand the diagrams and numbers too painful. He was assigned alternate for welding, he got by without needing work and filled out accident report to improve his English. In his previous forms for the Workers' Safety and jobs after arriving in Canada, he had Insurance Board (WSIB) — for which also worked with others who spoke he needed help since he couldn't read Persian. them. When Makholi was hired by Daybar Over the next month, Makholi perin April 2011, he was considered fully formed alternate duties while his right qualified and not requiring training arm was in a sling and his hand in a because he had worked for eight years splint, including sweeping the floor, doing similar work with another com- picking up debris around the plant and pany. However, though he could under- grinding and tapping holes for screws stand the diagrams and numerical and other small parts. During this specifications, he wasn't able to read time, he provided medical notes from the English work orders, which caused his doctor that stated he was "unable his lead hand to get angry with him at to use right hand for work until further times. Though there were no discipline notice." notes placed on Makholi's record, the On Feb. 2, 2012, Makholi met with a lead hand had to help him at times. surgeon and was booked for surgery in The lead hand would yell and swear at March 2013 to correct complications in him and Makholi sometimes com- his hand. The next day, he showed up plained to management, but nothing Continued on page 8 was done. OCTOBER 2, 2013 In T h i s Is s u e ASK AN EXPERT: Termination of fixed-term contracts • Frivolous discrimination complaints CASES AND TRENDS: Largest ever award for Ontario human rights breach CASE IN POINT: Challenge of termination provision unsuccessful OPINION: $160,000 discrimination award overturned YOU MAKE THE CALL: More than slap on wrist for educational assistant 2 3 4 7 12 Vacation dispute no reason to change resignation date AN ONTARIO employer should not have unilaterally changed an employee's date of resignation when she took several vacation days following her last day of work until her stated resignation date, an arbitrator has ruled. Rhonda Gorman was a planning data analyst for the Town of Whitby, Ont., beginning on Jan. 18, 2010. She went on maternity leave from Nov. 12, 2011 to Nov. 12, 2012. While on leave in March 2012, Gorman applied to take vacation days from Dec. 26 to Jan. 2, 2013, following statutory holidays on Dec. 24 and 25. Her request was approved. When Gorman returned to work in Nov. 2012, she asked to carry over eight vacation days she still had outstanding, to be used in 2013. The Continued on page 11

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