Canadian Employment Law Today

October 2, 2013 Worker said he was making conversation but co-worker disagreed ...continued from page 1 for work without a splint and he was asked to provide a doctor's note confirming he could perform welding work. Makholi complied and he was returned to his regular duties. However, those duties didn't just include welding — there was cutting, grinding, drilling, tapping, glazing and door preparation, which Makholi couldn't do because it hurt his hand. The lead hand told him he simply had to do it. Makholi called the plant manager to tell him the lead hand was being rude to him and forcing him to do work he couldn't perform. Makholi said he didn't want to work with that lead hand anymore and would prefer to work with another employee with whom he had worked well in the past. The manager testified Makholi said he was feeling pressured by the lead hand and asked him during the call to lay him off. Makholi denied he ever asked to be laid off. Employer said employee wanted to be laid off On Feb. 9, Makholi came to the manager's office and told him again that he was unhappy and couldn't handle the pressure from his lead hand. They went to the production manager's office, where the manager testified they asked Makholi if he wanted to be laid off. According to both, Makholi said yes. Afterwards, the plant manager claimed Makholi said to him "You are on the hook" for his surgery. Later that day, the plant manager told the executive vice-president that Makholi wanted to be laid off, so two letters were prepared. The first was a letter that stated "Daybar has determined that your employment shall cease effective immediately" and the second was a statement for him to sign saying Makholi understood his termination "shall be deemed a layoff without notice" and that he resigned "any and all recall rights." Because Makholi couldn't read English, the lead hand explained in general terms what they said and he had to 8 sign the second letter. Makholi asked for a copy but was told no because "I don't want this s--- flying around everywhere." Makholi claimed he was told the second letter was simply a layoff paper. He was then taken to his work area to gather his things and escorted out of the plant. Daybar later issued a record of employment (ROE) stating the reason for it was "shortage of work." Two months later, it issued a second ROE giving "dismissal" as the reason. Soon after, Makholi filed a grievance, claiming he was laid off because of a work-related injury and Daybar wanted to get rid of him. The WSIB conducted an assessment of his ability for other employment and determined his lack of reading and writing skills in English hurt his job search potential. Also, he remained unfit to perform work with his right hand. The arbitrator found Makholi did not ask to be laid off, either in the phone conversation with the plant manager or in his office. Much of this determination came from the fact the employer's termination letters didn't support this position. The first letter stated it was Daybar who determined the end of Makholi's employment and the second letter states his employment was being terminated. The only mention of resignation on Makholi's part was that he resigned his recall rights, said the arbitrator. "If (Makholi) was in fact resigning, which would be better for the employer than a termination, one would expect that (the plant manager) would have written the letters to very clearly state that (Makholi) was resigning," said the arbitrator. "More so, one would expect that (the manager) would have had (Makholi) at least attempt to write something in his own handwriting to this effect." The arbitrator also found it was "very questionable" that management didn't make a greater effort to explain the significance of the letters to Makholi. The arbitrator was also troubled by the fact no union representative was present at the termination meeting, though the collective agreement required the union to be notified of any layoffs. Daybar management testified that there was no union steward appointed at the time, but in fact there was one who was available that day. In fact, Makholi was told not to tell the union about what had happened and he wasn't given a copy of the first letter. In addition, Makholi's filing of the grievance that sought reinstatement showed he didn't intend to resign or ask to be laid off, said the arbitrator. It was most likely that he said he was having difficulty working with his lead hand and performing his regular duties with his injured hand. It was Daybar who initiated the termination to be free of the headaches of modified work and the WSIB, said the arbitrator. Also, the two ROEs issued by Daybar were contradictory, and indeed the first one that indicated a shortage of work was false, since Daybar hired welders shortly before and after Makholi's termination. The arbitrator found Makholi was unjustly terminated by Daybar and was entitled to reinstatement with compensation for lost income. However, Makholi received WSIB benefits beginning shortly after his termination, so the arbitrator directed Daybar and Makholi to attempt to resolve the issue of compensation. CELT For more information see: ■ Daybar Industries Ltd. and USW, Local 4092 (Makholi), Re, 2013 CarswellOnt 10738 (Ont. Arb. Bd.). MORE CASES To view more cases from Canadian Employment Law Today's archives, go to www.employmentlawtoday .com and click on "Advanced Search." 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